The head of the Food and Drug
Administration, Marty Makary, “resigned” in May, 2026 even though the decision had
been made by U.S. Health and Human Services Secretary Robert Kennedy “and then
the White House signed off on it.”[1]
Although Makary had been annoyance to drug-company executives, and to that
extent his removal was due to pressure on President Trump by the CEOs, his “resignation”
supports the theory of regulatory capture, wherein the regulated companies
control the very regulatory agencies (and regulators therein) that regulate
those companies, this case shows that it is possible for an industry’s
interests to be aligned with the public (health) interest. Does the alignment
regarding getting rid of a particular regulator lessen the unethical quality of
the broader conflict of interest between business and government?
Without a doubt, the regulated
industry was unhappy with Makery and his deputy, Vinay Prasad. For example, “(v)aping
executives told Trump that Makary was blocking approval of their products,
including new flavored e-cigarettes seen as crucial to the industry’s survival.”[2]
Additionally, Prasad was “pushed out of the agency twice in less than a year
for running afoul of specialty drugmakers and groups for patients with rare
diseases.”[3]
He had “rejection letters or requests to run additional studies” sent to more
than six drug companies on drugs for rare or hard-to-treat diseases that had
previously been approved by the FDA.[4]
I do not have enough information to be able to assess whether his actions were
in the public interest, as it is possible that the FDA’s previous approvals had
been flawed. I have more confidence in concluding that he operated against the public’s
healthy in going after an established coronavirus-vaccine maker. He had “repeatedly
overruled vaccine staffers to restrict eligibility for new coronavirus shots.”[5]
He even refused to “even consider Moderna’s mRNA shot for flu.” Moderna “called
for intervention by the White House.”[6]
In an internal memo, Prasad had claimed without evidence “that the FDA had
linked COVID-19 shots to the deaths of 10 children.”[7]
It seems that he was going more off an ideology than science.
It seems likely that the
drug-company executives red-flagged the ideological distortion as it would decrease
the companies’ future sales. The only ideology that rules in corporate
boardrooms is that of the profit-motive, so any competing ideology coming out
of a regulatory agency would be easily flagged. In such a case, the company-specific
economic interests would be aligned with the public interest because the
government-sourced ideology would be partial, hence partisan, and thus
not in line with a bigger picture such as can reflect the public interest. In
short, any pressure that the executives could bring on President Trump to
remove Makary and his deputy would be in the public interest even though it
would be a case of regulated companies getting rid of government officials who
regulate those companies.
In general, regulatory capture
of a government agency by a company or industry that the agency regulates is
unethical because it destroys the power-relationship that is required for
government regulation to exist. Another way of looking at the ethical problem
is by realizing that a company, and even an industry, look out for their own
particular (economic) interests, whereas the public interest is a whole. To put
a part before or ahead of the whole of which the part is a part is essentially
to have the tail lead the dog—a part leading a whole.
Because it cannot be supposed
that a part’s interests are identical to that of the whole of which the part is
a part, even cases in which the two are in sync cannot justify permitting the
part to call the shots for the whole—to direct the whole. Put another way, it
would still be unethical for a regulated company or industry to wield such
power as could dominate a government in a republic because companies are private
property rather than elected bodies. That specific cases such as Makary and
Prasad justify the drug industry pressuring Kennedy and Trump does not mean
that either official would be justified in being directed by that industry more
generally. The problem is that corporate political-campaign donations can be so
large that big pharma can have the political pressure to direct even a U.S. president.
Going forward, company executives could try to justify such power by pointing
to their “public” role in having shelved an ideology harmful to the public health
that was pushed by Makary and Prasad. It is important to keep in mind, however,
that regulatory capture is nonetheless unethical and contrary to democratic
principles of public governance of private property, including companies.
2. Ibid.
3. Ibid.
4. Ibid.
5. Ibid.
6. Ibid.
