Law & the Courts

Suing Big Pharma Won’t Fix the Drug Crisis

A pharmacist holds 40mg pills of OxyContin, made by Purdue Pharma. (George Frey/Reuters)
It’s important to do justice to bad actors — but don’t expect a reduction in overdoses.

There are good odds that Purdue Pharma, makers of the addictive prescription opioid OxyContin and perennial villain of the opioid crisis, will soon declare bankruptcy. The firm just reached a settlement with Oklahoma, paying out $270 million for what the state sees as the company’s role in the drug-overdose deaths of thousands of citizens. Several states are now going after Purdue’s owners, the ultra-wealthy Sackler family, as well. Blood, as one legal expert put it to the New York Times, is in the water.

With these lawsuits dominating the headlines, it is easy to assume that penalizing big pharmaceutical firms like Purdue will actually fix America’s overdose crisis, which killed more than 70,000 people in 2017 alone: Big Pharma is the bad guy, and taking it down should therefore solve our problems. If, as historian Cynthia Wachtel recently wrote in the Washington Post, “unfettered greed created an opioid epidemic,” then it is easy to conclude that punishing the greedy will allow us to, in Wachtel’s words, “conquer the epidemic.”

A great deal of ink is therefore spilled excoriating pharmaceutical firms. One recent Baltimore Sun op-ed called Purdue “the shame of the opioid crisis.” An article posted earlier this year at The Nation explicitly pinned the current crisis on pharmaceutical misdeeds, and argued that while “the current opioid crisis transcends Purdue,” this in large part because “there are numerous, widely prescribed opioid medications out there besides Oxy.”

To be sure, firms and individuals are likely guilty of unethical, destructive business practices in the name of profit, leading directly to many deaths in the mid-to-late 2000s. Suing them (or even prosecuting them criminally) could deter similar conduct in future, ensure justice for those whose lives have been wrecked by irresponsibly issued opioids, and remunerate the states and communities that have had to clean up the pharmaceutical companies’ mess.

But popular reporting can give the impression that pharmaceutical firms are currently, rather than previously, the main source of the crisis. This is simply not the case. We are no longer in a prescription-opioid crisis, but rather in a polydrug crisis driven primarily by illegal fentanyl. The major killers of Americans today are not pharmaceutical firms, but foreign drug-trafficking organizations.

Failing to pay sufficient attention to this reality can only hurt efforts to stop the crisis. Further, too much attention paid to prescription pills encourages undue regulatory and social pressure on pain patients, which may exacerbate, rather than alleviate, the overdose crisis and other major social ills.

Although the latest wave of lawsuits against big pharma is only getting started, drug-enforcement and public-health officials have been responding to the rise in prescription-drug deaths for years. During his second term in office, President Barack Obama turned federal attention to reducing prescription-drug supply through a number of tactics, including rescheduling some opioids, enhanced enforcement, and expanding Prescription Drug Monitoring Programs. The results: After rising to 81.3 opioid prescriptions per 100 Americans in 2012, the number fell to 58.3 per hundred in five years. It should drop another third by 2021.

This reduction has had measurable effects on the abuse of, and overdose deaths from, prescription painkillers. According to federal survey data, the number of Americans who self-reported current misuse of pain relievers has fallen from 4.9 million in 2012 to 3.2 million in 2017 — a nearly 40 percent reduction when adjusting for population. What is more, many of these users are taking pills prescribed to someone else.

The total number of deaths involving prescription opioids did continue to creep up after 2012, but the most recent data suggest they’re finally receding. Further, many recent prescription deaths involve fentanyl as well — and when you subtract fentanyl-involved ODs, the overdose rate from prescription opioids has actually dropped slightly since 2012.

All in all, we have gone through a three-phase crisis, with the overall number of opioid deaths rising through all three phases: Prescription-opioid deaths began rising in the 1990s but were eventually supplanted by heroin overdoses, which in turn have been supplanted by deaths involving fentanyl and its analogues. In 2017, fentanyl was involved in 28,000 deaths, compared to just over 15,000 deaths involving heroin and just under 15,000 involving prescription pills (many deaths involve both or all three).

Unsurprisingly, illegal heroin and fentanyl are not being made by American pharmaceutical firms. They are produced primarily in China or Mexico, then smuggled across the porous southwestern border or sent in by mail. Deaths are also now rising in some non-opioid drug categories, including methamphetamine, cocaine, and benzodiazepines — most of which are similarly foreign imports.

Failing to take all of these other problems into account constitutes a major oversight in any story about the drug crisis. What is more, overzealous focus on big pharma and prescription opioids can hurt those it is meant to help, by making life hard not only for pharmaceutical firms, but for chronic pain patients and the doctors who care for them.

A recent survey of medical professionals who prescribe opioids, for example, found that 52 percent felt “villainized” by media coverage of the crisis. Forty percent of them said that coverage had caused them to prescribe opioids less frequently than before.

To be sure, reducing needlessly long prescriptions is a good way to reduce the supply of drugs that that can be diverted to illegal use. But 20 percent of Americans suffer from chronic pain, including 8 percent with “high-impact” chronic pain. For many of these patients, opioids still serve as the only available relief, the absence of which can even lead to suicide attempts.

“Conflating the misuse of opioids with their legitimate medical use, and treating all opioids — illegal or prescription — alike is stigmatizing patients for whom opioid painkillers are necessary and medically appropriate,” wrote two medical professionals and a chronic-pain advocate in a STAT news op-ed.

And even in regards to opioid abuse there are trade-offs inherent in reducing supply. There is good evidence that the aforementioned efforts to stop prescription-pill abuse led many users to pick up heroin instead, thereby failing to mitigate harm. In a 2018 paper published by the National Bureau of Economic Research, three economists show that the “tamper-proof” reformulation of OxyContin — making it harder to crush up and snort — triggered a mass switch to heroin use. “The reformulation did not generate a reduction in combined heroin and opioid mortality — each prevented opioid death was replaced with a heroin death,” the authors write.

Maybe targeting Big Pharma and reducing supplies of prescription opioids was the right way to stem the drug crisis in the early 2000s — or maybe not. Either way, today drug-enforcement and public-health officials need to spend their energies controlling the border; pushing China and Mexico to crack down on drug cartels; and providing expanded treatment, harm reduction, and education.

The terrain of the drug crisis has changed. Prosecuting bad actors in the pharmaceutical industry is reasonable for correcting past injustices. But we cannot allow it to blind us to where the real problems now lie.


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