Why The Opioid Litigation Matters
Dear Fellow Advocates,
Facing Addiction with NCADD, in collaboration with the FedUp Coalition, recently launched The Opioid Lie campaign, a different kind of campaign that many of you have asked us good questions about. We wanted to take some time to put together this FAQ to help people understand the purpose and goals behind this new kind of judicial advocacy work for many of us.
Since day number two of the Facing Addiction Action Network, October 5, 2015, when over 400 individuals and their families met with their United States Senators to push for legislation in support of funding for our nation’s addiction crisis, we have been focused almost solely on Washington, DC policymakers with our collective advocacy efforts. But as we have always been asked by you, where can we have the most impact with our voices right now?
The answer to this question has evolved over the last two years given the changing political climate we operate in. We haven’t shied away from taking tough stands in the past and this new effort directed toward opioid litigation is no different. After extensive conversations with judges, attorneys, state attorneys general, and tobacco public health advocates involved in the fight for the $206 billion master settlement, we are more convinced than ever of the impact aggressive advocacy efforts can have now to save lives in the near future.
The most common need our grassroots champions have asked us to help them fight for is simple: funding. Some want increased funding for prevention efforts; others need money for treatment on demand and harm reduction services; many want recovery supports to get meaningful funding for the first time; and, across the board, everyone wants to fight for resources for stigma reduction campaigns, physician education and training (both for opioid prescribing and on addiction), and most of all getting the criminal justice system out of the way so public health responses to the addiction crisis can truly take hold. But all this takes money — lot’s of it!
Experts and policymakers alike have written about requiring potentially hundreds of billions of dollars in new resources to meet the above needs. The culmination of our collective advocacy efforts in Washington, DC just last week amounted to an unprecedented $6 billion over 2 years — most not to be spent in the areas many of you want but, rather, with lots and lots of it going to the criminal justice system. Patrick Kennedy has talked often about how the HIV/AIDS crisis got a $24 billion per year response by the federal government alone for an issue impacting far fewer people at its peak.
So what does the opioid litigation regarding prescription opioids have to do with any of this?
More than 400 cities, towns, labor unions, Native American Tribes, and hospital systems have already filed lawsuits against the opioid manufacturers and distributors and this number is climbing quickly by the day. These lawsuits are gaining considerable momentum as they charge opioid manufacturers and distributors with: overstating the benefits of prescription opioids, downplaying the risks of opioid use, aggressively marketing these drugs to physicians, and failing to monitor, refuse, and report suspicious orders of prescription opioids as required by law.
The fact that entities from all across the country have joined in similar litigation isn’t an accident. Many news stories have likened it to the beginnings of the journey that led to the Tobacco Master Settlement. This is the settlement in the late 90’s that brought $206 billion dollars to the table for states in the effort to fight tobacco-related health costs and even more money for research and public health messaging. Since 1997, U.S. cigarette consumption has declined by more than 40 percent, and smoking among high schoolers has been cut by more than half. By most accounts, this decline is seen as one of the biggest public health success stories in the last 50 years.
So when we think about needing BILLIONS NOT MILLIONS for our communities facing addiction in order to save lives this litigation, put simply, matters. With one in three American households now impacted by addiction and/or the opioid crisis, this effort matters perhaps more than anything the federal government may do in the next few years.
What about the FDA, DEA, and the doctors — wasn’t it their fault too?
Yes. The causes of the opioid epidemic are absolutely multi-factorial. No single bad actor should shoulder the entire responsibility for more than 500,000 American lives taken from us just since 1999 to prescription drugs. However, as the old adage goes … follow the money. When you follow the money, those who got the richest from flooding communities with opioids were and remain the actors at the top of the pyramid: the opioid manufacturers and distributors.
If we can agree that we need money to solve the problems in our communities related to addiction, and we agree that those who made hundreds of billions of dollars from selling and distributing opioids (and changing doctors’ prescribing habits) share a significant portion of the burden, then focusing on these companies who are at the tip of the spear for the opioid epidemic is a good place to start when seeking significant financial reparations.
Isn’t looking backward at what these companies did wrong for the past 20 years potentially taking our eyes off the urgency of the current crisis, even having unintended consequences?
There is no doubt that this is a real risk that must be considered when choosing to spend any of your time on this work. Unfortunately, when weighing all the costs and benefits, the question remains: do we have a choice not to engage in this fight? We know that illicit fentanyl and heroin overdoses have now overtaken opioid prescription overdose deaths and some of the restrictions on opioid prescribing is creating indirect and unintended harm as the balance of the “right” amount of opioids for medical use is sought.
However, the public health interventions needed for heroin and fentanyl use in America also demand more resources than local and federal governments are currently willing or able to put on the table. The well-established journey to the current state of the opioid crisis still goes directly through the volume of prescription opioids available whether looking back on historical or current usage for many people. Despite the modest reductions in opioid prescribing for the past few years, the deaths from prescription opioids continue to climb and still represent a major contributing factor for many current heroin users and, ultimately, the overdose death toll.
So while there is a real risk in turning any part of our attention from the urgency of what is happening right now, in an effort to hold those responsible accountable for their actions in the past, we have to be pragmatic and realize that if hundreds of billions of dollars were put on the table to address our calls for a robust public health response now, that money would indeed save millions of lives.
Judicial advocacy is new to me, how can I possibly impact the outcome of any of this?
While the lawyers on both sides and the judges overseeing the cases surely are in the driver’s seat, most of these folks are brand new to the addiction issue and there is a huge learning gap they are facing. After extensive conversations with advocates involved in the tobacco litigation work, there are three main areas where the voices of individuals, families, and allies can have an enormous impact on the ultimate outcome:
1. Size of the Settlement(s)
Our newly adopted mantra is that these settlements need to be measured in BILLIONS NOT MILLIONS of dollars. The history of litigation in most states surrounding opioids has mainly been focused on just one or two companies with a relatively small market share of overall opioid sales and ultimately has resulted in very little aggregate resources, settlements in the single-digit millions of dollars for entire states. This new wave of lawsuits now involves a collection of opioid manufacturers and distributors responsible for the majority of the opioid market. The White House Council of Economic Advisors recently released in their 2017 report, “The Underestimated Cost of The Opioid Crisis,” stating in just 2015 alone, “the economic cost of the opioid crisis was $504.0 billion, or 2.8 percent of GDP that year.” We have decades of damage behind us and in front of us that requires significant resources to heal our communities.
It is imperative that we quickly articulate to the state attorneys general and potentially our members of Congress in short order what a bad settlement looks like. They must understand we are watching, listening, paying attention, and will hold them accountable if they choose to let these companies off the hook easily. Remember, many of these companies have contributed heavily to many state and Congressional elections, so it is easy for an attorney general to tell his or her constituents that they brought in “millions” of dollars to help solve this problem and try to look good, while making the pharmaceutical industry happy at the same time. We have to stand strong, get loud, and ensure they know that any settlement that does not reach into the billions will be heavily scrutinized and come with political consequences.
2. Educating Those Involved on What the Money Should Pay For
Because many of the people in the judicial branch are new to this issue we need to become very vocal, very quickly, that any potential settlement agreed upon must have strict guardrails ensuring that all of the reparations secured be allocated directly to programs and efforts solely targeting solutions to the addiction crisis.
We know that some of the Tobacco Master Settlement funds in many states were squandered, sometimes allocated to fill unrelated budget holes. This situation happening again is absolutely avoidable, but only if we demand strict guardrails. Additionally, the lawyers involved are looking to you for the specific things the money should be spent on. They are not just suing for the past 20 years, but the next 20 years as well, and most have no idea what to invest in that will have the biggest impact. There are a few topline areas we can all agree must receive massively increased funding that could help millions of people:
Funding and expanding evidence-based addiction treatment and long-term recovery support services in your community
Supporting housing, employment, syringe exchanges, overdose prevention sites, and other needs of people impacted by the epidemic
Training health professionals in alternative pain treatment, appropriate opioid prescribing, addiction medicine, and medication-assisted treatment options
Supporting the increased needs of first responders and criminal justice diversion programs
3. Ensure Your Community is Involved
There is a groundswell of local municipalities filing suits in these cases because of what happened with the tobacco settlements when left largely up to the state-level to pass money down to local communities. Additionally, most cities and towns directly bear the costs of increased first responders, law enforcement, and other services needed as a result of the opioid epidemic. In the coming weeks, we will be releasing a guidebook on how to ensure your local community is engaged at all levels in this litigation. If there is ultimately a master national settlement and your community has not filed a suit then there is a significant possibility resources may not make it directly back to your town.
Opioid manufacturers and distributors can never fully repay the losses in your community, but they must provide substantial financial relief. This one may feel difficult and confusing; perhaps a different kind of advocacy that you have been involved in before. But I urge you not to take a pass on this one. There is a bigger potential for significant resources coming directly to your community through the opioid litigation than any other solely government-focused advocacy opportunity on the horizon in the coming months…and maybe years.
It’s time for accountability.
It’s time for restitution.
It’s time to help our communities heal and recover.
Judy Rummler, Chair, Fed UP! Coalition to End the Opioid Epidemic
Greg Williams, EVP, Facing Addiction with NCADD