The Core Legal Strategy Against Opioid Companies May Be Faltering
Addressing the opioid crisis is one of the most pressing issues of our time. More than 200 people lose their lives each day to drug overdoses. Since 2011, the opioid crisis has claimed more than 57,000 lives across the country. In Congress, America’s alarm bell is ringing loud and clear. Senator Rand Paul and colleagues have said: “The federal government must take drastic action to end this killing spree.” Ohio Senator Rob Portman is leading the charge, calling on all levels of government to get involved. “The opioid epidemic is among the most pressing matters facing our country,” he said.
Let’s examine the immediate urgency of the challenge. Congress is considering comprehensive and sweeping new legislation to address the opioid crisis. This legislation — which is crafted by experts, not politicians — will provide help to communities across the country. It puts people back to work and preserves healthcare by regulating prescription drug sales and drug companies that supply fentanyl. Congress should send it to the president’s desk.
But the core strategic weapon against drug companies may be failing. Here’s why:
One of the best ways to combat the opioid crisis — whether through congressional action or government regulation — is to hold the companies responsible for their role in driving Americans to seek illicit, and often deadly, drugs. The companies are the enablers, to make money and benefit their business interests. The many billions of dollars in profits they take in pay for our law enforcement officials and forensic chemists.
Some companies are not breaking the law. And some companies openly deny they are intentionally driving people to drugs. So what to do? The position of many families and victims is to throw the racketeers under the bus. Others will be calling for more regulation, especially for pain medications. Drug companies need to be held accountable for their actions. However, to deny this is to choose the easy path. Legislatures have proven themselves skillful at this over the years. Indeed, there are exemplary regulatory statutes and systems in place, including the RICO, RICO A, RICO B, and PFOA acts — all of which support criminal prosecution.
This tactic may make sense in some cases, but in a public health context such as the opioid crisis, it risks achieving no results and dis-incentivizing possible prosecutions down the road. It may be a moral stance, but it risks a limited strategy.
Congress should be thoughtful about what it ultimately approves and should carefully weigh the potential harm. There are also important considerations that should go into the legislative process:
Could increased penalties or regulation actually have an adverse impact on the supply of opioids by driving up the cost of making and distributing the drugs? That’s a legitimate question, considering this “war on drugs” could be drawing to a close. Would going after the drug companies really help stem the tide? American families feel the effects day in and day out. No one should have to wonder why their loved ones died from a drug overdose.
The Patriot Act
If Congress decides to regulate the companies, it should consider using existing statutes. President Ronald Reagan signed the Patriot Act in 2001, and the more than 80 statutes that fall under the Act are on target to address this issue. Among them is Section 2704, a statute that can be implemented in federal law. This statute permits federal judges to hold companies and people who produce, trade, or distribute controlled substances in civil contempt if such companies and persons fail to respond to subpoenas or court orders seeking information on how their drugs are distributed or distributed by individuals on the Take Back Coalition list. The lawyers and chemists who work for such companies, as well as the chemical manufacturers and sellers, have complied with this approach and keep the public safe. This approach is a proven strategy to dealing with the over-prescribing of pain pills, an issue all too common among pain sufferers.
Congress’s initial discussion of serious legislation is encouraging. Representative Elijah Cummings, ranking member of the House Committee on Oversight and Government Reform, convened the first Congressional hearing on the opioid crisis, arguing that it needs to be handled “emotionally, with care, empathy, and a transparent focus on not retribution, but solutions.” Senator Paul has noted that it is time for Congress to “force the companies to do right by the people they profit from.”
This is a challenging issue that will require federal action. Lawmakers can ignore the financial interest in hardline regulation that creates more problems than it solves. This position could lead to dangerous outcomes for the American people.