Marketing Kills: Origins of the Opioid Epidemic

Over the last five years, my firm, our clients, our co-counsel, and several of our skilled colleagues have been combating America’s opioid epidemic. Representing Dallas County and counties throughout Texas, we have worked to hold prescription opioid pharmaceutical manufacturers, wholesale, and distributors financially accountable for their role in causing, fueling, and profiting from the largest drug-related public health crisis in American history.

Earlier this year, we settled with several defendants. Those agreements will provide $1.75 billion to fund opioid harm reduction programs and an additional $75 million in NARCAN Nasal Spray, a life-saving drug that can reverse opioid overdose when administered in time.

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The opioid epidemic, now 25 years old, worsens. So, too, does the crushing economic burden this crisis inflicts. According to the White House Council of Economic Advisors (CEA), the cost of the opioid epidemic is at least $1 trillion a year and continues to increase.

Last year, over 107,000 Americans died of accidental opioid overdoses, which is more than in any single year that preceded it. That’s more people than we would lose if a 737 full of passengers and crew crashed every day of the year, each time killing everyone on board.

At its outset in the late 1990s and early 2000s, the opioid epidemic was caused primarily by aggressive drug company promotion of a dangerous lie: the best and safest method for treating chronic pain is to prescribe opioids. That claim is not true and has never been true. Addicting patients is not the right way to manage their pain, nor is killing them.

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While prescription opioids can be medically appropriate to manage acute pain for short periods of time (less than one week), or to ease intractable pain among the terminally ill, they are not the answer to chronic pain arising from non-malignant conditions such as back pain, knee pain, osteoarthritis, or fibromyalgia.

Opioids can neither cure nor treat any injury or disease. Rather, they temporarily reduce our perception of pain. Several studies have confirmed that long-term risks and health outcomes are significantly worse for patients who use opioids to manage chronic pain compared to those that utilize other therapies.

Manufacturers of opioid drugs routinely tied the compensation of their sales representatives to the larger volume and higher dosages of opioids. They commonly pitted their sales representatives against each other in organized contests that incentivized maximum sales of opioids, where money, prizes, and trips were awarded to the most prolific sellers.

Peer-reviewed published literature now confirms what opioid drug companies understood all along – aggressive marketing of opioids increases the incidence of addictions and overdoses in the places where marketing occurs.

Under both federal and state laws, wholesale distributors must maintain “effective systems of control” to prevent the diversion of prescription opioids to illegitimate channels and uses. Several of America’s largest wholesale opioid distributors chose to maintain their bottom lines and game their control systems to avoid triggering regulatory obligations.

The result of this widespread industry dereliction of duty was that America was glutted with prescription opioid pills in higher volumes and stronger dosages than ever before.

Between 1997-2012, the prescribing and subsequent supply of prescription opioids nationwide increased significantly. Billions and billions more high-dose opioid pills were dispensed to consumers across America which resulted in a 900% increase in addiction treatment and a 4-fold rise in overdose deaths.

Today, the Centers for Disease Control estimates that, consequently, as many as one in four patients receiving long-term opioid therapy in a primary care setting struggles with opioid addiction. An ABA survey revealed that attorneys frequently misuse opioids. In that study, over 5.5% of attorneys self-reported to having done so. Given that denial is a symptom of addiction, the actual opioid misuse rate is likely higher.

As bad as this crisis is, it’s not hopeless. Th ere are harm reduction programs that have been proven to work. Th ese include Medication Assisted Treatment (MAT) to treat addiction, widespread public accessibility of Narcan, and evidence-based education for doctors, patients, and school-age children on the dangers of prescription opioids and of illicit ones (heroin and fentanyl).

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