Os riscos do desenvolvimento e o consumo das vacinas desenvolvidas contra o covid-19: a (im)possibilidade de responsabilização da indústria farmacêutica por danos imprevisíveis à época da criação à luz do direito brasileiro

Abstract

The work proposes to study the legal uncertainty caused by the consumption of vaccines developed to combat COVID-19, and questions about of its reliability and effectiveness, resulting from its short development time. The discussion about the (im)possibility of accountability is on the agenda of the creators of the input for the risks of development - harmful potential of the product not detectable by contemporary science at the time of creation. The theme proves to be controversial at the doctrinal level. On the one hand, there is the doctrine protection to the consumer, which is consistent with the need to replace the full responsibility of the developers for the risks created, in order to safeguard the health rights, consumer protection and the inalienability of jurisdiction. the current opposite signals that the responsibility of developers for risks that do not could be foreseen by it amounts to a violation of the principles of order economic impact, which can generate a disincentive to the development of new products. However, the analysis cannot escape the guardianship of L. 8.078/90, given the nature consumer law of the object of study relationship. The consumerist law, despite obscure in dealing with the theme, signals the acceptance of the risks of development while exempt from responsibility for the fact of the product, for the legal deconstitution of the defect, pursuant to art. 12, § 1, III and § 3, II. However, the norm extracted from the CDC cannot be carried out by itself; must, essentially, remain connected to the constitutional principle that guides it. For such reasons, In this work, we defend the need for an in-concrete analysis of possible damages resulting from the consumption of vaccines, according to the criteria of need, adequacy and proportionality proposed by Robert Alexy, as a way to extract a response jurisdiction perfectly proportionate to the resolution of the dispute. That being so, when concrete demonstration of excessive sensitivity of damage to the consumer, it would be fully possible to depart from the exemption contained in the law of consumerism, with the consequent accountability of developers for the fact of the product, in favor of health rights and consumer protection