Jurisprudence

How a Big Pharma Lawsuit Could Succeed Where Big Tobacco Failed

A settlement could transform the opioid crisis—if politicians don’t squander the money (again).

A 1955 print ad for Lucky Strike cigarettes
A 1955 print ad for Lucky Strike cigarettes.
Blank Archives/Getty Images

Big Pharma is facing hundreds of lawsuits in nearly every state over its role in fueling overdose deaths, now that it is clear that companies were aware of the harm of the opioids they were manufacturing and marketing.

These lawsuits apply the same legal theory that extracted a $246 billion settlement from Big Tobacco in the ’90s for deceiving the public and hiding the full extent of the health risks associated with smoking cigarettes. Governments are paying out billions of dollars to treat an epidemic of addiction that was sparked, in part, by the widespread use and promotion of prescription opioids, and these companies that raked in billions of dollars should foot the bill. This time, rather than treating smoking-related illnesses like cancer, governments are shelling out billions of dollars on expensive drugs that prevent overdoses and treat addiction. Big Pharma, the plaintiffs argue, should pay up.

Lawsuits against the notorious Sackler family, which manufactured OxyContin, to distributors like McKesson and pharmacies like Walgreens were consolidated in December 2017 into what is called the “National Prescription Opiate Litigation” in the Northern District of Ohio under Judge Dan Polster. The first trial in Ohio is set to begin in October. Absent any settlement, legal experts say it could be years before a resolution. With over 130 people dying every day from opioid overdoses, time is not a luxury.

As enormous as the Big Tobacco settlement was, public health experts and attorneys have long viewed it as a missed opportunity to radically improve the public’s health. Money from that settlement is still being paid out to states, but only a fraction of it goes to treating and preventing smoking-related illnesses. Billions of dollars are distributed among 46 states every year, and legislators who control the purse mostly spend it however they want.

New York, for example, used $700,000 of its tobacco-settlement money to purchase golf carts and sprinklers for a public golf course. Alabama has spent over $1 million on building “boot camps” in which to jail minors who commit crimes. Such expenditures do “not reflect the original intent of the attorneys general who negotiated the settlement and the public health advocates who supported it,” according to the writers of an amicus brief filed in the Ohio opioid lawsuit, who are concerned that settlement money from Big Pharma could meet the same diluted fate.

So Slate asked several public health experts and attorneys how they would spend settlement money for maximum health benefit—and how they would ensure that the money is safeguarded from the political whims of budget-starved states looking to settlement money for a quick infusion of cash.

A windfall from Big Pharma could fuel a transformation of America’s entire approach to addiction. That could start with the recognition that people struggling with addiction often have many other needs.

“Many states chasing the money have no plausible mechanism to deliver treatment for the full range of mental and physical health conditions that are seen in patients recovering from opioid use disorder,” said Stefan Kertesz, a physician and researcher at the University of Alabama–Birmingham whose research on addiction and homelessness is widely cited.

Rural hospitals and clinics, if they’re not already shuttered, are rapidly going out of business. Settlement money could go to building vital health care infrastructure capable of treating complex health needs that are often associated with substance use disorders.

“It is absolutely crucial that funds be used to provide treatment for the full range of health conditions found in populations with addiction,” Kertesz said. “This means not just medications used for opioid addiction, but supports required to treat alcohol addiction and psychiatric illness too, such as depression or bipolar disorder, and infectious disease.”

Kertesz also emphasizes that chronic pain patients who need opioids still have access to them.

The current system still treats addiction differently than other health issues. “Addiction treatment is still often carved out as something separate from the rest of the health care system and much of the addiction treatment system continues to operate with outdated and sometimes punitive approaches,” said Sarah Wakeman, the medical director of Massachusetts General Hospital’s substance use disorder initiative. “We should be funding efforts that focus on creating and strengthening systems which integrate addiction treatment into the general medical system, and recognize that harm reduction is health care—not something separate.”

Wakeman is a proponent of what’s called “low threshold” services, which provide treatment without onerous barriers that require patients to jump through too many hoops. Lifesaving treatments like methadone and buprenorphine––the only medications proved to reduce mortality rates by 50 percent or more––should be easier to obtain than deadly drugs like heroin and illicit fentanyl, Wakeman says. For instance, when France nationally implemented “low threshold” access to buprenorphine, overdose deaths plummeted by 79 percent.

While a settlement agreement cannot directly change policy at the federal level, which currently limits how and when doctors can prescribe drugs like buprenorphine, Wakeman says that directing settlement funds to “low threshold” programs would ultimately treat more people.

A settlement agreement could also be an opportunity to rein in the power of Big Pharma, said Leo Beletsky, a professor of law and health sciences at Northeastern University. “Any settlement agreement should improve the monitoring and regulation of the pharmaceutical industry,” he said.

For example, the Big Tobacco settlement agreement placed heavy restrictions on how tobacco could be marketed. The result was no more billboards or cartoon characters like Joe Camel. “This is not about a few bad apples,” Beletsky said.

Beletsky also says it’s also important that settlement money, which he describes as “episodic” and “unsustainable,” doesn’t take the place of already-existing government investment. Money from any opioid settlement should be spent in addition to substantial government investment, and not replace it altogether.

These ambitious visions can only be achieved, of course, if the funds are spent in the spirit of public health and not squandered by legislators looking to fill holes in their budget.

Attorneys Derek Carr, Corey Davis, and Lainie Rutkow warned in the journal Public Health Reports that any opioid settlement agreement must be structured to ensure funds are not misspent like they were with Big Tobacco. “We saw states use their tobacco settlement revenues to cover budget shortfalls, subsidize tax cuts, and support general governmental services rather than investing in tobacco control and public health,” Carr, a senior attorney at ChangeLab Solutions, told me.

This risk of misspending is what keeps recovery activist Ryan Hampton up at night. “My big fear is that a fire hose of money will get spent as quickly as possible and not end up making a dent in the crisis,” he said. Hampton emphasized that organizations working hard to prevent overdoses in their community should have a seat at the table and be part of the decision-making process: “If decisions are left up to a few attorneys general, that can be dangerous.”

Attorneys like Carr think the pitfalls of the Big Tobacco settlement can be avoided.
“States should learn from the tobacco settlement’s shortcomings and take steps to shield opioid settlement dollars from political interference,” Carr said. One way to do this is through state trusts that can manage the settlement money to “create a sustainable statewide grant-making agency, guided by a robust community-input process which prioritizes grants for individuals and communities disproportionately affected by the war on drugs.”

Carr warned there is a risk that settlement money may go to “increased funding for failed war on drugs strategies, like tough-on-crime law enforcement that devastates communities of color.”

Ultimately, Carr and the others argue the funds will go a long way if they focus on root problems. He listed off an array of underlying causes known to drive substance use disorder and overdose: “Economic inequality, structural discrimination and racism, toxic stress, social isolation, housing instability, and lack of access to quality education.”

Hampton, who has organized rallies outside pharmaceutical companies, said that advocates will be watching lawmakers carefully as they decide what to do with the money: “There is going to hell to pay if this settlement money comes down and it’s not spent where it needs to be spent.”