Opioid Addictions and Deaths: How to Punish Wealthy Pharmaceutical Companies

The current epidemic of opioid use has been compared as a societal problem to that of cigarette smoking.  While the health issues with each type of product are not identical, the issues to society are quite similar.  Both lead to addiction and the need for chronic use, both result in poor health outcomes, and both can cause death—sooner or later.  Cigarettes and opioids were both produced by companies that were aware of the dangers inherent in their products, yet chose to market them as being safe.  The marketing included lies, deceptions, and bribery.  Both products imposed health-related costs on society as well as diminishing productivity throughout our economy.  The tobacco companies were brought to heel eventually and agreed to change the way they did business in a nation-wide, industry-wide agreement to compensate states for the damage done and provide funds to discourage the smoking habit in the future.  The settlement included an agreement to provide $246 billion for health-cost compensation and to fund anti-smoking efforts.

The damage being done by opioid marketing and distribution is approaching that of smoking in scale.  More on the drug companies role in pushing opioids for general purpose pain relief can be found in Opioids: How Many People Must a Pharmaceutical Company Kill Before It Becomes a Crime?  This suggests that it is time for a similar approach to be taken in dealing with the pharmaceutical companies that are responsible for the crisis.  An article in Bloomberg-Businessweek by Esmé E Deprez and Paul Barrett titled The Lawyer Who Beat Big Tobacco Takes On the Opioid Industry provides background on the issue.

The authors provide the state of Ohio as an example of why opioid use should be considered an epidemic requiring drastic action.

“In 2012 prescriptions reached a peak, 793 opioid doses, according to state statistics—enough to medicate every resident with 68 pills apiece.  Half of the state’s foster-care population is made up of children with opioid-addicted parents, and the rate of babies born addicted to opioids grew almost eightfold from 2006 to 2015.  In 2014, Ohio Attorney General Mike DeWine, a Republican, began considering litigation.”

“Filed in May in state court, Ohio’s suit accuses drugmakers of ‘borrowing a page from Big Tobacco’s playbook’ by concealing addiction risks.  According to the state, Purdue, Teva Pharmaceutical Industries, Janssen, Endo, and Allergan invested millions to change attitudes about opioid prescribing.  Janssen distributed a patient education guide calling opioid addiction a ‘myth,’ for example, while Endo advertised that an abuse-deterrent reformulation of one of its most popular opioids, Opana ER, made it crush resistant, despite its own studies disproving the claim.  From 2001 through 2015, Purdue hosted the website inthefaceofpain.com which promoted ‘the notion that if a patient’s doctor does not prescribe what, in a patient’s view, is a sufficient dosage of opioids, he or she should find another doctor who will’.”

“Ohio accuses the companies of creating a public nuisance, violating state laws against unfair sales practices, and committing Medicare fraud by spurring unnecessary prescriptions that the state reimbursed.  The conduct dates to at least 1996 and continues through the present, says Jonathan Blanton, who heads the AG’s consumer protection unit.  The companies, DeWine says, have reaped unjust profits while devastating communities and fueling a heroin resurgence.”

One of the perversities of medically prescribed opioid addiction is that the product is not cheap and any attempts to limit access to it drives up the price further.  The wealthy can continue to feed their habits by just paying more for pills, while the less-well-off find it cheaper and easier to feed their habit by turning to the illegal drug of heroin.  The profits then go to the illegal drug syndicates who seem to use similar marketing methods to those of pharmaceutical companies.

Ohio sought assistance in their litigation from Mike Moore who, as Mississippi Attorney General (1988-2004), led the charge that brought down the tobacco companies.

“In 1994, using an untested and widely derided legal strategy, he became the first state AG to sue tobacco companies for lying about nicotine addiction and hold them accountable for sick smokers’ health-care costs.  A Democrat, he marshaled AGs from around the country along with private plaintiff’s lawyers who stood to reap massive fees.  He went on to negotiate the largest corporate legal settlement in U.S. history: a 50-state, $246 billion agreement that funds smoking cessation and prevention programs to this day.”

 Why were Moore and his allies successful in bringing about this agreement?  The main reason was purely economic.  The tobacco companies had enormous amounts of funds to devote to litigation, and if they should fail in their efforts, they could buy off an individual, or a single state, with a settlement.  But they didn’t have enough funds to buy off every litigant and every state claiming damage.

“On June 20, 1997, a coalition of state AGs stood behind a podium in the grand ballroom of the ANA Hotel in Washington to announce the culmination of a four-year effort.  They’d filed so many individual, expensive lawsuits that tobacco companies were cornered into negotiating a collective settlement instead of fighting each one separately.  The agreement punished the industry for past misconduct, created a fund to pay for tobacco-related medical costs, and banned using Joe Camel in advertisements.  ‘We wanted this industry to have to change the way they do business—and we have done that,’ a youthful Moore said to a roomful of journalists and cameras.”

Moore is today assisting in assembling a similar coalition with similar goals of changing the way the opioid producers do business and forcing them to pay compensation for the damage they have caused.  The authors refer to a meeting that occurred in July, 2017 at the same hotel (now a Fairmont).

“Aided by the lawyers in the room (and others, including high-profile and high-profiting alumni of the tobacco wars, such as Joe Rice and Steve Berman), 10 states and dozens of cities and counties have sued companies including Purdue Pharma, Endo, and Johnson & Johnson’s Janssen Pharmaceuticals—beginning in 2014 but mostly in the past few months.  (Forty state AGs have launched preliminary investigations as a way to gauge the viability of litigation.)  The suits allege that the companies triggered the opioid epidemic by minimizing the addiction and overdose risk of painkillers such as Oxycontin, Percocet, and Duragesic.  Opioids don’t just cause problems when they’re misused, the suits argue: They do so when used as directed, too.”

“The opioid epidemic cost the U.S. economy $78.5 billion in 2013, according to the U.S. Centers for Disease Control and Prevention, a quarter of which was paid by taxpayers through increased public costs for health care, criminal justice, and treatment.  The industry, the suits contend, should bear the financial burden of this wreckage.”

There is another reason why the pharmaceutical companies might be driven to a universal agreement besides the pain of large-scale litigation.  The constant legal battles will illuminate to the general public the crimes they committed in promoting opioids, and make clear that they were willing to let tens of thousands die from drug overdoses in order to earn a profit.  Moore anticipates a process of “vilification” of these companies that will put at risk their ability to do business in the current mode with respect to their entire suite of products.

“Moore is confident that the opioid industry will be driven to negotiate by the same reasons tobacco companies were: to end the demonization and obtain financial predictability.  ‘The vilification of this industry has not even begun yet,’ he says.  ‘In other words: This litigation will vilify them.  It won’t make the companies look like they are legitimate businesspeople.  It’ll make them look like they took advantage and made billions of dollars on lots of people who died from their products’.”

Let the vilification begin!