THE FT COLUMN: Lawyers circle America’s opioid crisis
Twenty years ago Mississippi made legal history: its attorney-general sued tobacco companies for downplaying the addictive nature of nicotine. And in 1997 the state won $3.6bn damages, paving the way for a massive $200bn-plus settlement in 1998 between tobacco companies and 46 states and federal authorities.
Now Mississippi is trying to repeat this victory — this time with opioids. Last year Jim Hood, its Democrat attorney-general, started action against a group of pharmaceutical companies, claiming they had concealed the addictive nature of their drugs. In June the full-blown suit was formally filed.
This has not grabbed headlines yet, given the psychodramas erupting in Washington. But investors and policy makers would be foolish to ignore it. America’s opioid crisis, which has already ravaged communities across the country, is fast becoming an issue of major national economic importance.
Away from the Washington beltway, legal action is snowballing. Ohio state has launched a suit. So has Oklahoma, and dozens of municipalities and cities including Chicago. And these are based around the same theme used against Big Tobacco: pharma groups are accused of misselling opioid products, triggering an explosion of addiction and deaths. The plaintiffs want massive damages to cover the cost of treating the addiction — again, like the tobacco saga.
Could history replay itself? Investors seem surprisingly relaxed. One company in the crosshairs, Purdue, is privately held. But the others, such as Endo, Depomed and Mallinckrodt, are publicly quoted. Their shares have underperformed the biotech index this year, but they have not collapsed.
Meanwhile the companies insist that there is little chance of another tobacco style fine. In recent years some very small-scale settlements have occurred (most recently last month in Florida.) But pharma companies insist that it is wrong to bracket opioids with tobacco. After all, the former — but not latter — is sold only with approval by the Food and Drug Administration. And doctors, not manufacturers, write prescriptions, further muddying the issue of liability.
Given this, it is still anyone’s guess what might happen in court. But focusing on the legal niceties alone partly misses the point — and the reason the suits are potentially significant and welcome.
If you dig into the colourful filings from the attorneys-general in Ohio or Mississippi, what is clear is that the pharma companies have a serious case to answer for over marketing and methods portrayed as at best questionable, if not unethical. The filings cast the federal regulators such as the FDA in a dismal light, given how slow they have been to crack down.
So, if nothing else, when the suits hit court they should spark more scrutiny and debate. And that is long overdue. With every month that passes, the scale of the opioid crisis turns more tragic and eye-popping. More than 300,000 Americans have died of an opioid overdose since 2000; in many states it is killing more people than car crashes.
It has even sparked research at the Federal Reserve. Last month, for example, Janet Yellen suggested in Senate testimony that opiod usage was both a symptom and cause of the puzzling pattern of "declining labour force participation among prime age workers".
But although awareness of the problem has — belatedly — risen, there is no consensus in Washington on its causes, how to stop it spreading or how to meet the rising cost of treatment at a time when the White House is trying to cut budgets and reform healthcare. Some Republican leaders have proposed creating a $45bn package to fight addiction. But this is like "spitting in the ocean", as John Kasich, Ohio governor, says.
So for that reason alone, the legal suits are good news. Yes, they are partly driven by opportunistic, fee-hungry lawyers. And, yes, it would be naive to think that any settlements will really plug the funding gaps for treatment or solve the problem.
But if these cases do go through court, it might force more transparency in the pharmaceutical sector. It might even spark more awareness in the corporate C-suite about social responsibility — not just in this one industry but elsewhere too. And maybe it will change the wider zeitgeist about drugs too.
After all, those 20th-century legal wars against Big Tobacco did not just produce a $200bn-plus settlement; the publicity contributed to a regulatory crackdown and cultural shift. This needs to happen with opioids too. So all eyes on places like Ohio, Oklahoma and Mississippi. And let us hope that where the states lead, the federal agencies will eventually follow.
© The Financial Times Limited 2017