October 20, 2017
Big Opioid Pharma = Big Tobacco?
by Mark Pew
The crisis calls for an investigation by Congress, lawsuits by individual states, counties and cities, class actions and more.
Have you noticed that big opioid pharma (BOP), manufacturers and distributors of prescription opioids are under attack? I have.
In fact, I’ve written about it for awhile. You can read “Suing Big Opioid Pharma – The Next Big Thing?” from 3/13/17, “780,069,272 Pain Pills” from 12/20/16, “Suing Big Opioid Pharma” from 9/27/16 and “Patients Sue Physicians’ and Pharmacists” from 5/22/15.
As I’ve followed the strategic initiative, it reminds me of big tobacco. As a refresher, it was accused (informally, at first, and then collectively, over time) of knowing that tobacco was dangerous and addictive but kept it a secret. In November 1998, attorney generals from 46 states entered into the Tobacco Master Settlement Agreement (MSA) with the four major tobacco companies:
The states settled their Medicaid lawsuits against the tobacco industry for recovery of their tobacco-related health-care costs, and also exempted the companies from private tort liability regarding harm caused by tobacco use. In exchange, the companies agreed to curtail or cease certain tobacco marketing practices, as well as to pay, in perpetuity, various annual payments to the states to compensate them for some of the medical costs of caring for persons with smoking-related illnesses. In the MSA, the original participating manufacturers (OPM) agreed to pay a minimum of $206 billion over the first 25 years of the agreement.
See also: Misconception That Leads to Opioids
Throughout 2017, I have saved every article I read on the subject of the opiod problem (see below). You are more than welcome to read the entire article, but I think the date (constant throughout the year), source (wide variety of publications) and headline (provocative and descriptive) provide a sweeping perspective on the scope of this activity:
- Bloomberg Technology, 10/13/17, “Teamsters Push to Strip Cardinal Health CEO of Chairman’s Role”
- Vox, 10/11/17, “Sen. Claire McCaskill on the opioid epidemic: pharma ‘ought to begin looking over their shoulder’”
- STAT, 10/10/17, “A veteran New York litigator is taking on opioid makers. They have a history”
- NorthJersey.com, 10/5/17, “N.J. sues opioid drugmaker Insys over its role in deadly epidemic”
- Bloomberg Businessweek, 10/5/17, “The Lawyer Who Beat Big Tobacco Takes On the Opioid Industry” (the subtitle is helpful for context: “Mike Moore made cigarette companies pay for the high cost of treating smokers. Here he comes again.”)
- The Nation, 10/3/17, “Fighting the Opioid Epidemic by Targeting Big Pharma’s Bottom Line”
- NBC News, 9/28/17, “Washington State Sues OxyContin Maker Purdue Pharma”
- Fortune, 9/27/17, “Big Pharma Is Getting Hit With a Huge Wave of Opioid Suits”
- Cision PR Newswire, 9/22/17, “Kentucky Attorney General Taps Morgan & Morgan to Lead Opioid Litigation”
- Chicago Tribune, 9/19/17, “States expand investigation of opioid makers, distributors” (subtitle: “The investigation into marketing and sales practices seeks to find out whether the industry’s own actions worsened the epidemic”)
- AP News, 9/19/17, “States expand investigation of opioid makers, distributors”
- Portland (ME) Press Herald, 9/18/17, “Portland joins nationwide lawsuit against opioid manufacturers”
- WNEP-TV (Moosic PA), 9/15/17, “Taking the Opioid Crisis to Court”
- New Mexico Office of the Attorney General, 9/7/17, “Attorney General Balderas Files Lawsuit Against Opioid Manufacturers and Distributors for Fueling the Opioid Epidemic that is Crippling New Mexico”
- STAT, 9/6/17, “Insys ignored warnings about marketing powerful opioid Subsys”
- WorkersCompensation.com, 8/21/17, “IL AG Reaches $4.5 Million Settlement With Drugmaker Insys For Deceptively Selling & Marketing Highly Addictive Opioid Painkiller”
- CLM Magazine, 8/18/17, “America on Opioids: As the epidemic continues, the legal landscape for manufacturers and distributors unfolds”
- WCI360, 8/16/17, “Drug Co. to Pay IL Millions in Opioid Marketing Lawsuit”
- WorkCompCentral, 8/16/17, “Another State (South Carolina) Sues Purdue Pharma Over Opioid Claims” (subscription required)
- The Washington Post, 8/10/17, “This is why I’m (Ohio Attorney General) suing five opioid manufacturers in my state”
- The Cannabist, 8/9/17, “New Hampshire sues OxyContin manufacturer for role in opioid crisis” (Yep, the marijuana industry is paying attention.)
- Vox, 8/9/17, “US officials are starting to treat opioid companies like Big Tobacco — and suing them”
- Oregon Live, 8/7/17, “Fed up with opioid deaths, Multnomah County sues drug makers for $250 million”
- The Wall Street Journal, 7/23/17, “Lawyers Hope to Do to Opioid Makers What They Did to Big Tobacco” (subscription required)
- The Globe and Mail (Canada), 7/19/17, “Ottawa urged to prosecute Purdue Pharma over marketing of OxyContin”
- Business Insider, 7/12/17, “It’s been a brutal week for the most shameless company (Insys Therapeutics, maker of Subsys) in the opioid crisis — and it’s about to get worse”
- Reuters, 7/11/17, “Mallinckrodt settles U.S. opioid drug probe for $35 mln”
- Fortune, 7/10/17, “Big McKesson Shareholder, Governance Experts Say the Opioid Crisis Should Have Cost the CEO Some Bonus Pay”
- The Onion, 7/10/17, “OxyContin Maker Criticized For New ‘It Gets You High’ Campaign” (The best satire always includes a grain of truth.)
- Insurance Journal, 7/10/17, “Illinois County Sues Opioid Makers”
- WorkersCompensation.com, 7/6/17, “Opioid Litigation and Workers’ Compensation”
- The Washington Post, 7/4/17, “Drugmakers and distributors face barrage of lawsuits over opioid epidemic”
- Fox News 23 (Tulsa), 6/30/17, “Oklahoma AG sues drug manufacturers over opioid addiction”
- NJ.com, 6/23/17, “N.J. joins multi-state probe of drugmakers over opioids, report says”
- The Wall Street Journal, 6/21/17, “Missouri Files Its Own Suit Against Opioid-Painkiller Producers” (subscription required)
- AJC.com, 6/19/17, “Georgia AG joins nationwide probe of opioid marketing”
- The Wall Street Journal, 6/14/17, “States Launch Bipartisan Probe of Opioid Marketing and Addiction” (subscription required)
- Business Facilities (Topeka), 6/9/17, “Drug Kingpins”
- Reuters, 6/2/17, “U.S. state, local government lawsuits over opioids face uphill battle”
- Fortune, 5/15/17, “New York County Sues Purdue Pharma and Johnson & Johnson Over Opioid Marketing”
- The Globe and Mail (Canada), 5/1/17, “Purdue Pharma agrees to settle OxyContin class-action suit”
- NPR, 4/25/17, “Cherokee Nation Sues Wal-Mart, CVS, Walgreens Over Tribal Opioid Crisis”
- AlterNet, 3/16/17, “Going After the Opioid Profiteers”
- CNN, 3/13/17, “Lawsuit alleges that NFL teams gave painkillers recklessly”
- HuffPost, 3/7/17, “Taking Aim At The Opioid Industry”
- Managed Care Matters, 2/23/17, “Who’s going to pay for the Opioid Crisis?”
- Los Angeles Times, 1/19/17, “City devastated by OxyContin use sues Purdue Pharma, claims drugmaker put profits over citizens’ welfare”
- WorkCompCentral, 7/14/16, “(Work) Comp Should Sue Purdue” – (From the author: “And it IS fraud! Knowingly concealing information that causes harm and damage to others is just as bad as misrepresentation.”)
The full scope of the opiod crises includes an investigation by Congress; lawsuits by individual states, counties and cities around the country (and in Canada); collaboration among attorney generals; and class action lawsuits. (And maybe others). The initiation of most of this action is not academic, it is personal.
Take Mike Moore, the former Mississippi attorney general who was the first to sue Big Tobacco using a then-unproven legal strategy. His nephew started with Percocet as prescribed by a doctor in 2006. By 2010, he was using street fentanyl. Moore saved his nephew from an overdose by taking him directly to the hospital.
As he’s watched the tobacco victory pay off in declining smoking rates, he’s also seen easy access to powerful pain medication spark a new deadly crisis. He’s convinced this is the moment to work the same mechanisms on the drug companies that forced the tobacco industry to heel — and he’s committed himself to making that happen. “It’s clear they’re not going to be part of the solution unless we drag them to the table.”
The primary argument against BOP is the same as the one against Big Tobacco. BOP knew the dangers of their product, but they misled consumers (in this case, prescribers) by purposefully obfuscating the truth.
See also: Opioids: Invading the Workplace
If you look at the evidence (anecdotal and factual), it appears as though there was a strategic effort to hide the truth. Of course, all of this in large part is still alleged — not proven in a court of law — and BOP will have an opportunity to make their arguments.
Except… In May, Purdue Pharma settled a class-action lawsuit in Canada for $20 million. But of course, settlements always include the language “no admission of guilt.” As I stated in a post:
$20 million (or 0.064% of OxyContin revenue) to settle? This is a rounding error for Purdue Pharma. But not to those who became dependent/addicted and lost anything from an active lifestyle to life itself. Fair and equitable? That was a rhetorical question — I don’t believe it is either fair or equitable. Not so much the dollar amount, but the fact that it will not hurt Purdue at all in the pocketbook. If the goal of a lawsuit is to change behavior because it’s too painful not to, then this probably didn’t hit the mark.
Whether you believe the opioid epidemic is real or not (I do), or whether you think at least some of the deaths from illicit street heroin and fentanyl are a consequence of over-prescribing prescription opioids (I do), I think we can all agree it’s wrong for a company to tell its customers there is no danger when there really is (and when the company knows it). In this case, it can be deadly.
So if BOP wants to know where this is heading, they just need to refresh their memories about what happened with Big Tobacco. What happened then is about to happen again.