Recently, three major drug distributors and one drug maker reached a settlement proposal with attorneys general from a bipartisan coalition of states that would require the companies to pay approximately $26 billion to settle claims over their role in the nation’s opioid epidemic. Commentators have been quick to compare the recently unveiled terms to the 1990s tobacco lawsuit known as the Master Settlement Agreement (MSA). They claim this is the “second-largest cash settlement ever, trailing only [the MSA].”
Beyond the obvious of $26 billion being only 10.6 percent of what tobacco companies have paid out, the opioid lawsuit is nothing like the MSA. For one, this is a one-time payment, whereas tobacco companies are forever on the hook of paying the states a percentage of cigarette sales, not to mention all the taxes.
Interestingly, the settlement does do something the MSA didn’t -- it requires states to spend a “substantial majority of the money … on opioid treatment and prevention.” This is quite ironic, given that one of the companies in the settlement distributes a lot of opioid prevention drugs, including naloxone, which cost the Commonwealth of Pennsylvania $5 million in 2017.
Further differentiating the two settlements is the fact that cigarettes, and even novel tobacco harm reduction products, have never had the federal government’s stamp of approval like opioids did. And, public health agencies defended them against other agencies, even while issues were coming to light.
In a 2002 congressional hearing, when states were seeing an uptick in prescription pill drug overdoses, the then-director of the Office of New Drugs at the Food and Drug Administration (FDA) remarked that the agency approved OxyContin "based on two clinical trials."
In this same 2002 hearing, a senator noted that the Drug Enforcement Agency (DEA) believed OxyContin was being “aggressively” marketed, and that its manufacturer purported it was “less prone to abuse than similar drugs.” Interestingly, the DEA’s former director noted in 2001 that OxyContin was like a “looming battleship on the radar screen.” FDA would go on to approve similar prescription opioids, including drugs that state attorneys general urged the agency not to approve.
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When federal government health agencies were first made aware of issues, there were no calls to ban any products. There is no doubt that prescription pain medication alleviates the pain of thousands of Americans, and thus, there is a medical need for such products. Nonetheless, the agencies responsible for approving such drugs must also be held accountable for the effects of such drug approval, and as it stands today, no federal agency has been subject to such scrutiny.
If anything, the federal agencies have misled the public regarding the opioid epidemic. Take, for example, the Centers for Disease and Control Prevention’s (CDC) “Three Waves of Opioid Overdose Deaths.”
The CDC suggests that the second wave of the opioid epidemic began in 2010, yet prescription drug overdoses still accounted for the majority of opioid overdoses that year, and the years after. According to the National Institute on Drug Abuse, in 2011, 22,784 Americans died from an opioid overdose. Of those, 15,410 deaths were attributed to prescription opioids and 4,397 were caused by heroin overdoses. Heroin overdose deaths continued to increase with 10,574 Americans succumbing to heroin overdoses in 2014.
Undoubtedly though, the introduction of illicit fentanyl, largely from China and Mexico, has wrought even worse damage. In 2016, more than 19,000 Americans died from a synthetic opioid, compared to 9,580 the year before. In 2019, synthetic opioids accounted for 36,359 of the 49,860 opioid-related overdose deaths.
Fentanyl and heroin are problematic because there is no regulation beyond the failing prohibition model, and federal health agencies are ill equipped to address this public health crisis regarding stopping the flow of such drugs. Worse, alarming levels of fentanyl are being found in fake prescription pills disguised as the same FDA-approved pills. Young Americans without substance abuse disorders have become victims to overdose deaths after just once experimenting with what they assumed was a legitimate pill.
Again, the settlement of the opioid lawsuit cannot possibly be compared to the MSA. The agencies responsible for protecting the public waited almost a decade to sound the alarm. In a June 2010 press release, the CDC commented on a study which showed the “number of emergency department visits linked to nonmedical use of prescription pain relievers” increased 111 percent in a five-year period. The following year, the agency declared an epidemic of prescription pill overdoses, noting that deaths from such overdoses “more than tripled” in a ten-year period. Mind you, in 2011, more than 15,000 Americans died from a prescription opioid.
Compare this to the same agency’s response in 2019 to the spat of vaping-related lung injuries. Every week, the CDC gave an update, initially urging the public to refrain from all vapor products, despite many state health departments linking those injuries to illicit products containing tetrahydrocannabinol (THC). The agency demonized tobacco harm reduction products, ignoring the millions of Americans who have used these products to quit smoking, and stoking even more alarmism.
Again, the CDC never sounded the alarm on prescription pills, even though in 2019, 14,139 Americans died from a prescription pill overdose, 672 of whom were between 15 and 24 years old. Conversely, the CDC estimated that as of February 2020, a total of 68 Americans deaths were attributed to vaping-related lung injuries.
America’s opioid epidemic has been ongoing for two decades. There are many fingers to point, but ultimately, the country’s public health agencies failed to protect the half a million Americans that died from an opioid overdose between 1999 and 2019.
The recent opioid lawsuit reflects these agencies’ inactions. It also allows the same agencies to avoid any scrutiny, or responsibility. This lack of accountability is evident in how they have addressed other crises. Until this accountability gap is addressed, the United States will be hostage to health crises.
Lindsey Stroud is Director of The Taxpayers Protection Alliance’s Consumer Center.
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