To understand how states are going on the offensive against opioid makers and distributors for the devastation their pills have caused, look no further than Kentucky, where about as many people die of overdoses every year as from car accidents and gunshots combined.
Kentucky Attorney General Andy Beshear (D) filed a third lawsuit last week aimed at recouping damages from the opioid epidemic -- the latest one is against Cardinal Health, which holds about 20 percent of the state’s market share. And he says he’s not stopping there.
Here's what Beshear said when I asked him whether he's planning further litigation: "Absolutely."
“I’m committed to suing every single opioid manufacturer or distributor that knew how dangerous how these drugs were but irresponsibly marketed them or profited from them and haven’t taken responsibility to help us repair the devastation they caused,” he said.
Beshear says Kentucky has been too damaged by the harmful effects of opioid abuse to shy away from the issue. The state has the fifth-highest rate of death from drug overdoses, and opioids are so prevalent in some areas that there’s a ratio of hundreds of pills to each person.
“You don’t meet a Kentuckian anymore who hasn’t lost a friend, a family member or a neighbor,” Beshear said. “It’s our single-biggest threat to economic job growth in Kentucky. We have more kids in foster care and kinship care than ever before, and the driving force behind all this is the opioid addiction crisis.”
Beshear sued Endo Pharmaceuticals in November, and in January went after the McKesson Corporation — which has nearly one-third market share in Kentucky — charging that the company failed to report to state and federal authorities large quantities of opioid shipments to the state’s eastern region.
Kentucky is just one of dozens of states, counties and cities suing opioid makers for the ways they marketed opioids to consumers and allegedly fell short in reporting high levels of demand in certain parts of the country, especially in the Appalachian region hit hardest by the abuse epidemic. It's just another front in the government's rapidly evolving approach to an epidemic that President Trump has declared a public health emergency.
Congress has taken some action to fund anti-opioid efforts, recently providing $6 billion over two years as part of a broader budget bill. And in its recent budget proposal, the White House outlined a series of steps and policy changes aimed at helping states combat the problem. Health and Human Services Secretary Alex Azar spoke about the crisis to the National Governors' Association winter meeting on Saturday.
"President Trump and this administration recognize that it is not the federal government that’s on the front lines of this battle—it’s all of you and your law enforcement officers; your community leaders; your teachers and school counselors; your doctors, EMTs and nurses; your faith-based partners," Azar said. "We are dedicated to empowering you and your allies in this fight."
Indeed, states and localities have set out on their own to force opioid makers and distributors to dish out their own funding to help mitigate the widespread effects of addiction.
Besides Beshear, attorneys general in West Virginia, Ohio, New Hampshire and Pennsylvania — five of the 10 states with the highest overdose death rates — are also suing opioid makers. Forty-one states have joined an investigation into several opioid-involved companies, including Teva Pharmaceuticals, Endo Industries, Janssen Pharmaceuticals, AmerisourceBergen and Purdue Pharma, which makes the widely used painkiller OxyContin.
Stakeholders call the action the biggest set of lawsuits over a public health and safety issue since the tobacco litigation back in the 1990s, when 46 states and the District of Columbia reached a settlement with the five largest tobacco companies requiring the industry to pay billions annually for antismoking programs and setting rules for the sale and marketing of cigarettes.
Although there are similarities, some legal experts say it could be a longer legal reach to convince courts that opioid makers can be held responsible for the abuse of their products. Cigarettes, after all, were being used as intended while those abusing opioids are using the medications outside the Food and Drug Administration's guidance.
“Did the manufacturers understate the addictive nature of the drugs?” said Jodi Avergun, a former chief of staff of the Drug Enforcement Administration and now a defense lawyer with Cadwalader, Wickersham and Taft. “That’s entirely possible, but to say everything that ensued from that point on is the fiscal responsibility of the manufacturer I think is a very questionable proposition.”
But Beshear and other attorneys general insist they have a strong case to make based on advertising promoted by the opioid makers themselves. These companies knew their prescription painkillers were deeply addictive and that many of the medications didn’t work a full 12 hours, yet they marketed the pills as safe, effective and long-lasting, anyway.
In his state's lawsuit against Purdue, Endo, Teva, Johnson & Johnson and Allergan, Ohio Attorney General Mike DeWine (R) cites a 2009 example from a website sponsored by Endo that claimed “people who take opioids as prescribed usually do not become addicted.” Beshear is also focusing on arguments that opioid makers recommended their highly addictive painkillers be used to treat ailments as benign as headaches — even though for years doctors usually prescribed such strong medications for only the terminally ill or cancer patients.
“These manufacturers advertised very dangerous products for uses they never should have been advertised for,” Beshear said.
In response to the rising criticism — and the mounting legal challenges — Purdue announced this month that it would stop promoting opioids to physicians and would instead direct any doctors with questions about OxyContin or other prescription painkillers to the company’s medical affairs department instead of sales representatives. My colleague Katie Mettler has an interesting visual story on past ads that played down the negative effects of OxyContin.
The shockingly fast rise of opioid abuse — the rate of death from opioids was five times higher in 2016 than in 1999 — combined with intensifying public attention make the drugs prime legal fodder for states facing the problem on the ground. Michael Canty, a partner at the law firm Labaton Sucharow in New York, said he and his colleagues have met with about 25 attorneys general to consult on whether to bring lawsuits over opioids.
“Democrats and Republicans alike, they are both passionate about solving the issue,” Canty said. “We have whole communities that can’t work, that can’t prosper. It has sucked the life out of their states in so many ways.”
|You are reading The Health 202, our must-read newsletter on health policy.|
|Not a regular subscriber?|
--In his remarks Saturday to the NGA, Azar homed in on medication-assisted treatment, which the medical community stresses is crucial in helping people back away from their drug addictions. "This is a particular aspect of the epidemic that demands leadership—leadership that is willing to work to overcome any stigma associated with addiction and addiction treatment, and to treat the opioid epidemic not as a moral failing, but as a moral challenge for every single American," Azar told the crowd.
Azar told the governors the administration is "dedicated to empowering you and your allies in this fight" and said his agency has identified a five-point strategy focused on data, research, pain, overdoses and access.
A few actions Azar said HHS is taking include:
--Working with states and other stakeholders "to support more timely, specific public health data and reporting," particularly through the Centers for Disease Control.
--Supporting research on pain and addiction, in part through the National Institutes of Health.
--Making sure health-care payments, prescribing guidelines and best practices promote healthy, evidence-based methods of pain management through the federal Interagency Pain Management Task Force.
--Making available HHS grants, research and technical assistance to improve access to overdose-reversing drugs.
AHH: Despite fears expressed by some abortion providers, the Trump administration won't ban Planned Parenthood and similar groups from applying for Title X family planning grants. On Friday, the HHS Office of Population Affairs released a long-delayed funding announcement for $260 million that can be used for contraception and other family planning services, but not for abortion.
Valerie Huber, acting deputy assistant secretary for population affairs, said all eligible organizations -- including Planned Parenthood -- are free to apply for the funding, although she added the administration is considering changes to Title X through regulation. “We’re looking at opportunities to improve the program, and I really can’t speak to what that looks like,” Huber told reporters.
OOF: Flu activity is decreasing for the first time in this fierce flu season, suggesting the worst may be over, The Post's Lena H. Sun reports. CDC officials said Friday the latest data suggests this season's peak may have occurred based on several tracking and reporting systems it uses gauge the severity of seasonal flu -- including the percentage of doctor visits for symptoms. That measure dropped significantly last week; about 6.4 percent of all doctor visits were for fever, cough and other symptoms, down 7.5 percent from the previous week.
"But the intensity of illness caused by the respiratory virus, the worst since the swine flu pandemic of 2009-2010, continues to take its toll," Lena writes. "Another 13 child deaths were reported for the week ending last Saturday...That brings the total to at least 97 pediatric deaths since October."
OUCH: Authorities have announced a $10,000 reward for information in the case of a CDC employee who disappeared in Atlanta two weeks ago. Timothy Cunningham, who was made a commander in the U.S. Public Health Service in July, was last seen around midday Feb. 12 when he left work saying he didn't feel well, The Post's Alex Horton reports. A Harvard-educated epidemiologist, Cunningham contributed to responses following outbreaks of Zika, Ebola and health emergencies caused by Hurricane Sandy. He also was a prominent fixture in the Atlanta community, earning a spot in Atlanta Business Chronicle's 40 Under 40 Awards last year.
Tiara Cunningham, his sister, was the last family member to speak with Timothy before he disappeared. She told the New York Times that during their last phone conversation, he sounded "not like himself" and said she didn't get a response when she texted him later. “I feel like I’m in a horrible ‘Black Mirror’ episode,” she told reporter Christina Caron.
--President Trump talks less about repealing the Affordable Care Act now that Congress has mostly shelved the effort. But he took aim at the health-care law while speaking to the Conservative Political Action Conference on Friday. Of course,the president added his own spin on the GOP failure to repeal most of of the 2010 health-care law, overstating how much of the ACA was erased by Congress and playing up the ability of his administration to reshape the law through regulatory changes.
“I think we may be better off the way we’re doing it, piece by piece by piece, ObamaCare is just being wiped out,” Trump told the CPAC crowd. “The individual mandate essentially wipes it out, so I think we may be better off…And people are getting great health-care plans and we’re not finished yet.”
Trump also appears to have forgotten his previous promises to stop publicly slamming Sen. John McCain, who is fighting brain cancer, for his role in halting a repeal bill last summer. Without actually naming the Arizona Republican, Trump still referenced him as one of the senators who doomed the GOP effort.
"Remember this, not only did we get the tax cuts, which everybody said we wouldn’t get and by the way repealed in that tax cut the individual mandate, which is a tremendous thing…except for one senator who came into a room at 3 o'clock in the morning and went like that, we would have had health care too,” Trump said, to boos from the crowd. “Remember, one person walked into a room, when he was supposed to go this way [thumb up] and he said he was going this way [thumb up], and he walked in and he went this way [thumb down], and everyone said, 'What happened? What was that all about?' Boy, oh boy. Who was that? I don’t know. I don’t know."
Later that day, Meghan McCain referenced Trump’s comments about her father and said she and her mother would be addressing them on ABC's "The View" on Wednesday. “We’re going to talk about what it’s like to have this continuing to happen as a family while my father battles brain cancer,” Meghan said.
She also called out Matt Schlapp, chairman of the American Conservative Union which hosts CPAC, for excusing the booing at the conference:
Chad folks were booing his vote to retain obamacare. That's worth a boo https://t.co/WbbT6o9jS8— Matt Schlapp (@mschlapp) February 24, 2018
Given what my family is going through right now and what my father has given to this country I would expect better from both you and the crowd, Matt. But please, continue making excuses for the inexcusable. https://t.co/5xdZp7z2vM— Meghan McCain (@MeghanMcCain) February 24, 2018
--Axios reports Trump has lately been talking up the idea of executing drug traffickers the way they do in Singapore where the death penalty is mandatory for drug trafficking offenses. "According to five sources who've spoken with Trump about the subject, he often leaps into a passionate speech about how drug dealers are as bad as serial killers and should all get the death penalty," Jonathan Swan reports.
"He says that a lot," another source who's spoken to Trump at length about the subject told Jonathan. "He says, 'When I ask the prime minister of Singapore do they have a drug problem [the prime minister replies,] 'No. Death penalty'."
--A few more good reads from The Post and beyond:
- The Alliance for Health Policy holds an event on “Using State Flexibility to Improve Medicaid Long Term Services and Support.”
- The Bipartisan Policy Center holds an event on the “Future Role of Government in Health IT and Digital Health” on Tuesday.
- The Senate Health, Education, Labor and Pensions Committee holds a hearing on the opioid crisis on Tuesday.
- The House Judiciary Subcommittee on Regulatory Reform, Commercial and Antitrust Law holds a hearing on competition in the pharmaceutical supply chain on Tuesday.
- The House Energy and Commerce Subcommittee on Health will hold a hearing on combating the opioid crisis on Wednesday.
- The Senate Health, Education, Labor and Pensions Committee holds an executive session on various bills on Wednesday.
- The U.S. Chamber of Commerce holds an event on combating the opioid crisis on Thursday.
Watch President Trump's CPAC address, in three minutes:
What's the deal with the NRA, firearms and background checks?:
Trevor Noah says he admires how the Parkland school shooting survivors won't take no for an answer: