South Carolina sued the maker of OxyContin, Purdue Pharma LP, this month for fraud and deceptive marketing (1). This is the latest lawsuit Purdue faces amongst others from Ohio, Oklahoma, Missouri, Mississippi and New Hampshire as well as smaller counties and cities (2). News headlines are calling it a “Big Tobacco” moment as governments take on large corporations in the name of public health. This may be appropriate, as some of the lawyers involved in the lawsuits were successful in the big tobacco cases, including Joe Rice, Steve Berman and ex-Mississippi Attorney General Michael Moore (3). In the 1990’s, states won suits totaling $206 billion from tobacco companies for similar claims about tobacco’s advertising, marketing and promoting its products.
These lawsuits face challenges however, as exemplified by the City of Chicago. In 2014 the City of Chicago brought suits against major pharmaceuticals on similar grounds of marketing tactics for opioid products, only to have most of the case thrown out for insufficient evidence (4). Last year a federal judge dismissed most of Chicago’s claims because the city could not create a direct link between specific prescribers who had seen the deceptive marketing and subsequent prescriptions for the defendant (5).
Kluczynski Federal Building and Dirksen United States Courthouse, Chicago, Illinois
These painkillers are regulated by the Food and Drug Administration (FDA), making a second challenge for governments and layers. The FDA approves the labels and warnings. Opioid pharmaceutical companies may misrepresent their drugs to prescribers, but the FDA still has to approve labels on prescription labels. Unlike the big tobacco suits, this brings regulators and physicians in to the equation. This makes the case a bit less cut and dry, as lawyers need to prove that manipulative and misrepresentative advertising directly leads to prescriptions that lead to overdoses and chemical dependency.
How much is just for drug companies to pay?
The Department of Health and Human Services cited the societal costs of prescription opioid abuse and dependence at $55.7 billion in 2009 (6,7). This included costs to health care, the workplace and the criminal justice system. Four years later that cost was valued at $78.5 billion (8). Purdue has made more than $2 billion dollars a year for the past nine years from the sale of OxyContin. In the 2007 lawsuit against Purdue Pharma, the pharmaceutical agreed to pay $600 million for misleading the public about OxyContin’s risk. As the lawsuits again today against Purdue and other drug makers suggest, this lawsuit did little to deter further marketing campaigns. Without further action, these lawsuits may be just a financial road bump (9).
- “South Carolina Sues OxyContin Maker Purdue Over Opioid Marketing.” The New York Times, The New York Times, 15 Aug. 2017, nytimes.com/reuters/2017/08/15/us/15reuters-south-carolina-purduepharma.html.
- King, Robert. “States Try to Hit Wallets of Opioid Makers.” Washington Examiner, 16 Aug. 2017, washingtonexaminer.com/states-try-to-hit-wallets-of-opioid-makers/article/2631623.
- Feeley, Jef, and Jared S Hopkins. “Big Pharma’s Tobacco Moment as Star Lawyers Push Opioid Suits.” Bloomberg.com, Bloomberg, 15 Aug. 2017, bloomberg.com/news/articles/2017-08-15/south-carolina-joins-states-suing-purdue-pharma-over-opioids.
- Silverman, Ed. “J&J And Other Drug Makers Tossed From Lawsuit Over Opioid Marketing.”The Wall Street Journal, Dow Jones & Company, 11 May 2015, blogs.wsj.com/pharmalot/2015/05/11/jj-and-other-drug-makers-tossed-from-lawsuit-over-opioid-marketing/.
- The Editorial Board. “Government Opioid Abuse.” The Wall Street Journal, Dow Jones & Company, 31 July 2017, wsj.com/articles/government-opioid-abuse-1501542119.
- Birnbaum, Howard G., et al. “Societal Costs of Prescription Opioid Abuse, Dependence, and Misuse in the United States.” Pain Medicine, vol. 12, no. 4, 2011, pp. 657–667., doi:10.1111/j.1526-4637.2011.01075.x.
- Pollack, Harold A. “So Prescription Opioid Disorders Are a $78.5 Billion Problem : Medical Care.” LWW, Medical Care / Wolters Kluwer, 2016, journals.lww.com/lww-medicalcare/Citation/2016/10000/So_Prescription_Opioid_Disorders_are_a__78_5.1.aspx.
- “Makers and Distributors of Opioid Painkillers Are under Scrutiny.” The Economist, The Economist Newspaper, 6 Apr. 2017, www.economist.com/news/business/21720336-how-pharma-may-have-contributed-americas-opioid-crisis-makers-and-distributors-opioid.