10,000 more Americans die per year from opioid overdoses than during the peak of the AIDS epidemic. Drug overdoses, a large majority of which stem from opioid use, have elbowed out car crashes and gun shootings as the leading cause of death among Americans. Indeed, overdoses have led to a drop in American life expectancy for the second year in a row. The scariest part of opioid overdose statistics is that death rates are accelerating, rather than slowing down.
Among the large swaths of American counties crippled by the opioid epidemic, some of the most desperate can be found in Ohio. Montgomery County–home to the city of Dayton–has been dubbed the “overdose capital of the world.” Preliminary data from 2017 put the county on track to lose 800 people from overdoses. The opioid crisis in America, especially rural America, typically follows a well-documented pattern: people obtain legal opioid prescriptions, become addicted, and turn to heroin or other illicit opioids when their prescriptions run out. In Montgomery County, this narrative is particularly prevalent: almost 93 prescriptions for opioids were written for every 100 people in 2016. The county’s morgue is overflowing with overdose victims.
Pharmaceutical companies must take financial responsibility for their role in the opioid epidemic. Ohio has decided to do exactly that, suing the pharmaceutical giants who manufacture, market, and supply opioid medication in the state. In May 2017, the State of Ohio sued several pharmaceutical companies, accusing them of misleading the public about the dangers of opioids and playing a role in instigating the opioid crisis sweeping across the state. This lawsuit quickly turned into a conglomeration of many federal lawsuits against the biggest suppliers of opioid medication. As of February 2018, the number of federal lawsuits had risen to 320, after a large lawsuit from Alabama joined the settlement talks between the Ohio Attorney General and opioid manufacturers.
Ohio is not alone in seeking reparations from the pharmaceutical industry for the destruction of the opioid epidemic. In early 2017, West Virginia sued Cardinal Health and AmerisourceBergen for their role in the epidemic and reached multi-million dollar settlements. Holding companies responsible for their addictive products is not without precedent: Lawsuits against opioid manufacturers are reminiscent of the lawsuits against cigarette companies in the late 1990s and early 2000s, which accused cigarette companies of intentionally misleading the public about the dangers of cigarette addiction. Similar accusations in the opioid lawsuits, that pharmaceutical companies misled doctors and consumers by trivializing the risk of opioid addiction, could hold pharmaceutical companies as financially responsible as Big Tobacco.
To make the pharmaceutical industry pay for its role in creating the opioid epidemic, lawyers can take lessons from the tobacco lawsuits, which eventually led to the 1998 Master Settlement Agreement requiring cigarette companies to pay $206 billion dollars to 46 states over 25 years, and to cease aggressive advertising practices, such as advertising to children. Because of those settlements, the lawsuits against the tobacco industry are heralded as a success story, even though these victories came nearly 50 years after cigarettes were shown to cause cancer. Litigation against Big Tobacco finally began to succeed in the late 1990s when lawyers argued that fraudulent marketing by these companies hid the real dangers of cigarette addiction, and the resulting strain on public health systems demanded compensation.
Lawyers going up against pharmaceutical giants are making similar accusations of fraudulent marketing. Pharmaceutical companies used a targeted marketing plan to make sure doctors thought opioids were safe and aggressively advertised opioids to doctors. Unlike cigarettes, opioid medication cannot be bought over the counter; as a result, the main focus of marketing campaigns targeted doctors instead of customers. The lawsuit in Ohio alleges that pharmaceutical marketers used selected doctors called “key opinion leaders” who influenced other doctors by promoting the benefits of opioid medication. Arguing that these key opinion leaders gained influence in the medical field in part because of funding and awards from the pharmaceutical industry, the Ohio Attorney General asserted that these doctors repaid the industry by promoting a positive stance on opioids. Whether or not this was a widespread practice, the money spent by opioid manufacturers marketing to doctors is obvious. The State of Ohio alleges that 168 million dollars was spent marketing opioids to doctors, and more than 14 million was spent exclusively on medical journal advertising. Even more concerning, studies have shown that targeting messages to doctors can have an enormous impact on prescribing habits.
Also similar to the accusations against Big Tobacco, it is not just advertising which implicates pharmaceutical companies. Pharmaceutical companies are additionally accused of misleading doctors and the public by downplaying the risk of opioid addiction and falsely claiming that opioid dependence can be easily controlled. One of the more insidious crimes of which Big Pharma is accused of is the promotion of the concept “pseudoaddiction” which claims that the signs of opioid addiction actually indicate that patients need more medication. At best, these claims made by pharmaceutical companies were ill-informed and eventually proven to be false. At worst, they mirror the public deception for which Big Tobacco was held responsible.
Lawyers fighting opioid manufacturers should also look towards the argument made against Big Tobacco that their product caused significant financial strain on public healthcare systems. It is obvious that the opioid epidemic has exerted an enormous burden on every aspect of local healthcare, from the police and emergency workers who must carry large amounts of naloxone to reverse overdoses, to overwhelmed emergency rooms and morgues. In 2016, Ohio pledged to pump 1 billion dollars into local communities to help fight the drug epidemic. Yet the strains on healthcare and other social services cannot be as easily traced back to opioid prescriptions as in the case of cigarettes. Overprescribing opioid medication surely led to the opioid epidemic, but they are no longer the immediate cause of death. Reforms in prescribing habits, such as less pills per prescription and fewer prescriptions, have cut down the supply of opioid pills. Yet, without access to pills, people addicted to opioid medication consistently turn to heroin. Adding to this danger, deadly overdoses skyrocket when synthetic opioids like fentanyl and carfentanil corrupt the heroin supply.
Associating opioid pharmaceutical companies with hospitalizations and deaths not directly caused by their products is a much more difficult task. Indirectly, their pills may have fueled the opioid epidemic, but are no longer the reason so many people fatally overdose. Opioid addiction is increasingly shifting to heroin and synthetics: in 2016, 14,427 died of overdoses from prescription opioids while 17,536 people died in 2015, despite a large increase in total opioid lethal overdoses from 2015 to 2016. Fentanyl killed more than 20,000 people in 2016; heroin killed over 15,000. As overdose deaths trend away from pills and towards illicit synthetic opioids, it becomes increasingly difficult to hold pharmaceutical companies legally responsible for the resulting pressure on public healthcare services. At the same time, tens of thousands of people are still dying directly from opioid medication.
Pharmaceutical companies have cast themselves as both the villains and saviors of the opioid crisis, somehow controlling both its causes and solutions. In Alabama, the largest supplier of opioid medications was also the largest supplier of naloxone, the drug necessary to reverse an overdose. the more that the crisis intensifies, the more naloxone is necessary. Significant public money is being spent on naloxone; many US counties have prioritized spending money on providing emergency services with naloxone. While companies like Purdue Pharma have pledged to work with communities to supply naloxone, they profit from its use. To combat this, the suing of pharmaceutical companies for their role in the opioid epidemic can highlight how much they have profited from it.
Suing opioid manufacturers has yielded some results: in February 2018, Purdue Pharma eliminated half of their marketing team in response to a suit. Until now, lawsuits against opioid manufacturers have prosecuted violations of consumer protection laws, as in West Virginia. But to truly hold the opioid industry responsible financially, states need to sue for misleading the public about the dangers of opioids and excessively marketing to doctors. Talks between the Ohio Attorney General and opioid manufacturers will likely lead to multi-million dollar settlements.
But this is not enough. The cost of the opioid epidemic is estimated at over 500 billion dollars in 2015 alone, a number that could easily rise. Entire generations in many rural towns have been decimated by this crisis, and the social and political effects are still to be seen. Pharmaceutical companies must take financial responsibility for their role in the opioid epidemic similar to Big Tobacco’s $206 billion payout to states in 1998.