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Herbert says plans to buy more controversial anti-malarial drugs have ‘ceased’

Legal questions swirl around $800K sale of drugs to treat COVID-19

Gov. Gary Herbert removes his mask before speaking during the daily COVID-19 briefing at the Capitol in Salt Lake City on Friday, April 24, 2020.
Gov. Gary Herbert removes his mask before speaking during the daily COVID-19 briefing at the Capitol in Salt Lake City on Friday, April 24, 2020.
Steve Griffin, Deseret News

SALT LAKE CITY — Utah Gov. Gary Herbert said Friday the state health department’s negotiations on a controversial contract to buy up to 200,000 doses of anti-malarial drugs have “ceased.”

His statement came as critics, including medical experts and Utah lawmakers with medical backgrounds, blasted purchasing the unproven and at times dangerous drugs.

The governor also said — a day after it came to light that the Governor’s Office of Management and Budget bought $800,000 worth of hydroxychloroquine and chloroquine weeks ago — that he, too, didn’t know about that purchase.

“That’s not going to happen,” the governor said on the larger contract with Meds in Motion, a Utah pharmacy that has stockpiled the drugs that is owned by Dan Richards, who is also a pharmacist lobbyist.

“I know there was hope” when the drug caught interest of state leaders looking to alleviate the health and economic pressures of COVID-19, Herbert said, but he added there was “maybe more hype than hope.”

Additionally, Herbert said he’s “hopeful” the state will get a refund for the $800,000 it had already spent on the 20,000 doses — a purchase that even the state’s own health department officials said they weren’t aware of until the Deseret News began asking questions about an invoice showing the purchase was executed on March 31.

That purchase, Herbert said, is now also under a legal review by the Utah Attorney General’s Office to see “why it happened, when it happened and how it happened.”

The governor’s comments during a Friday press conference came the same day the Food and Drug Administration cautioned against using hydroxychloroquine or chloroquine to treat COVID-19 outside of a hospital setting or clinical trial.

That announcement came after studies have shown the drugs could cause other serious health problems with COVID-19 patients — and after other studies have shown the drugs could be helpful to others.

“The FDA is aware of reports of serious heart rhythm problems in patients with COVID-19 treated with hydroxychloroquine or chloroquine, often in combination with azithromycin and other QT prolonging medicines,” the FDA announcement said. “We are also aware of increased use of these medicines through outpatient prescriptions.

“Therefore, we would like to remind health care professionals and patients of the known risks associated with both hydroxychloroquine and chloroquine. We will continue to investigate risks associated with the use of hydroxychloroquine and chloroquine for COVID-19 and communicate publicly when we have more information.”

The FDA added: “Hydroxychloroquine and chloroquine have not been shown to be safe and effective for treating or preventing COVID-19.” However, the drugs have been approved for study in clinical trials.

State officials told the Deseret News on Thursday that the 20,000 doses of drugs had not yet been delivered to the state.

Paul Edwards, communications director of the state’s COVID-19 Community Task Force, said the order was authorized by the Governor’s Office of Management and Budget after the governor’s administration granted the authority to that office early on in its pandemic response to make “quick, strategic decisions to support the state’s response to the pandemic.”

Asked whether it would be legal for the state to hold or possess the drugs since it is not a pharmacy, Edwards said he didn’t know the answer. “There are important questions here about the role of the state, the role of specific pharmacies, and who could hold and share” the drugs, he said.

Despite protests from critics and lawmakers with medical backgrounds, the Utah Legislature in a special session Thursday appropriated $8 million for a “treatment drug stockpile.”

Now it’s not clear how that money will be spent. Herbert said it will be “set aside” and perhaps used for a different emergency need.

Critics, including the left-leaning Alliance for a Better Utah, have blasted state officials for looking to stockpile the “unproven” drug, arguing it will benefit Richards, the Meds in Motion owner. Lauren Simpson, policy director for the alliance, has called it a “closed-door sweetheart deal” that would bankroll Richards’ “speculative business decision at the risk of Utahns.”

Herbert, when discussing the purchase of the drug Friday, told reporters he believes everybody involved in the deal acted “at least on our side of the equation, in good faith,” trying to find ways to “alleviate suffering and find hope” for Utah’s path to recovery.

“I think at least on the government’s side of the equation all done in good faith with a desire to help the public,” the governor said. “I can’t answer for the other side of the equation right now.”

Richards did not return multiple requests for comment Friday.

Even before Herbert announced the review of the $800,000 purchase, legal questions had began to swirl around the deal.

After learning about the 20,000-dose buy, Megan Milne, a third-generation Utah pharmacist, sent an email earlier Friday to the Utah Department of Health and the Utah Division of Occupational and Professional Licenses saying she was “incredibly concerned” about the purchase and questioned whether Meds in Motion could legally manufacture and sell that many doses of the drug.

According to the Division of Occupational and Professional Licenses’ website, Meds in Motion has been licensed as a class A or class B pharmacy. In Utah, only pharmacies registered as class C can manufacture medications, according to state code.

“Meds in Motion is a compounding pharmacy; they are licensed to create individual doses for individual patients pursuant to a valid prescription,” Milne wrote. “Pharmacies are under strict state and federal laws to not create mass quantities of doses without a prescription.”

Because Meds in Motion’s four pharmacy locations have never pursued validation for compliance by becoming a class C pharmacy, Milne said it’s “unlikely” the pharmacies are “capable of complying with these strict requirements.”

“Therefore, please do all that you can to halt this potential violation of state and federal law being funded by precious taxpayer money,” Milne wrote.

Reached by phone Friday, Milne also told the Deseret News she found the $40-per-dose the state paid for the 20,000 medication packs of chloroquine, zinc and hydroxychloroquine, to be extremely high.

“It’s completely exorbitant,” she said.

Rep. Suzanne Harrison, D-Draper, a physician and a past president of the Salt Lake County Medical Society, has been an outspoken critic of state officials’ consideration of buying the “unproven” drugs. She said she was “outraged” when she found out about the 20,000-dose order Thursday.

In an interview following Herbert’s comments, Harrison said Friday she is “encouraged” by the FDA’s guidance and to hear that the state’s plans to purchase additional drugs have ceased.

“I hope that state officials will continue to listen to medical experts when it comes to addressing the medical aspects of this crisis,” she said, adding that she hopes more medical experts will sit on “every committee” tasked with responding to the pandemic.

“I hope there is a renewed commitment to transparency as a result,” she said. “I hope we don’t let this pandemic be used as a shield from transparency to potentially have some profit at the expense of taxpayers.”

Harrison said medical experts “all along” had raised warning flags against the purchase of the drugs. As a “fiscal conservative,” Harrison said she has concerns about the state “wasting taxpayer dollars on unproven medications.”

“I want a cure as much as anyone,” she said, “but we can’t put the cart before the horse and let wishful thinking get in the way of good medicine.”