By Claudia Lauer
Associated Press
LITTLE ROCK, Ark. — A British pharmaceutical company that told Arkansas not to use its products during executions is trying to determine if the state plans to use them anyway, but prison officials are dismissing inquiries about the drug by citing a new law that makes all execution policies an official state secret.
Hikma Pharmaceuticals canceled a contract with Arkansas prison officials in 2013, after it learned the state purchased a seizure medication and another drug to use in lethal injections from one of its U.S. subsidiaries.
But records obtained by The Associated Press indicate that the state — which plans to resume executions next month after a 10-year gap — has a powerful sedative in its execution-drug supply with a label that appears to be from West-Ward Pharmaceuticals. The company is a Hikma subsidiary based in New Jersey.
“We have been trying to contact the Arkansas (Department of Correction) to confirm that they have our product and, if confirmed, to ask them to return it to us,” Susan Ringdal, a Hikma vice president, said in response to questions from the AP.
“We continue to strongly object to our product being used for lethal injection,” she said. “We are also auditing our sales and distribution channels to try to determine how they might have gotten our product.”
The state’s new secrecy law allows the state to withhold information about its execution-drug suppliers. Arkansas Department of Correction spokeswoman Cathy Frye said the law bars her from saying whether Hikma had contacted the department. She said the department could not respond to anyone — even manufacturers — asking about the drugs.
“State law mandates that we withhold that information, regardless of who is requesting it,” she said.
Arkansas Attorney General Leslie Rutledge’s office backed the agency. Spokesman Judd Deere said Friday that the law prohibits the department “from the disclosure of that information.”
Attorneys for death row inmates have filed a lawsuit challenging the law, calling it unconstitutional.
Through a Freedom of Information Act request, the AP obtained redacted photographs of the containers, product inserts and expiration dates of drugs that were purchased for executions. The records show the items were purchased by the state in one transaction on June 30 for $24,226.
The AP then reached out to three drug companies whose unique labels appeared to match the photos when compared to records from the U.S. Food and Drug Administration and the National Institutes of Health.
The labels appear to show that Hikma manufactured the state’s supply of midazolam, a sedative implicated after inmates gasped and groaned during longer-than-expected executions last year in Arizona, Ohio and Oklahoma. In June, the U.S. Supreme Court narrowly approved continued use of the drug during executions.
The other labels appear to show that the state’s potassium chloride, which stops the heart, was made by Hospira Inc., while its paralytic agent, vecuronium bromide, was made by Sun Pharma.
India-based Sun Pharma said Thursday that it was looking into whether the Arkansas prison system had its drug, and if so, whether that would violate company policy.
Illinois-based Hospira has publicly said it opposes its drugs being used during executions, but company spokeswoman Julie Ferguson declined to discuss the Arkansas drugs this week and referred the AP to the company’s written policy.
The policy states that Hospira has ceased sales of seven drugs — including potassium chloride — to prison hospitals and restricts its supply chain to prevent such sales through third-party distributors. The policy doesn’t address possible actions if prisons obtain the drug for lethal injections.
Katherine Toomey, an attorney with Lewis Baach, a law firm specializing in international commercial disputes, said she believes the Arkansas law wouldn’t take precedent over companies’ rights. She said drug manufacturers, like any company, have a commercial and legal right to know whether their drugs are being used in executions so they can enforce contracts.
“The Arkansas law, which seeks to shroud execution in secrecy, does not affect these independent contractual rights, nor does it immunize Arkansas from liability if the state improperly obtains or utilizes drugs for executions,” Toomey said.
Gov. Asa Hutchinson last week announced execution dates for eight inmates starting on Oct. 21. Executions have been on hold in Arkansas since 2005, largely because of drug shortages and court challenges to the state’s execution procedures.
The governor declined comment Friday, saying it was “a matter for the Department of Correction.”
In July 2011, the U.S. Drug Enforcement Administration seized vials of sodium thiopental from Arkansas amid legal questions about how the state obtained them. Investigators discovered the drugs were from a distributor described in court filings as a one-man British operation that shared a building with a driving school.