The latest opioid settlement — between state attorneys general, including Pennsylvania’s Josh Shapiro, and Johnson & Johnson plus three major distributors — offers $26 billion (minus payments for the lawyers) over nearly 20 years. Sounds like a lot, until you consider that the White House Council of Economic Advisers estimated America was suffering nearly $700 billion in 2018 alone in overall opioid epidemic costs: lost lives and productivity, treatment, emergency response, law enforcement. Pennsylvania might get a billion over the 18 years, but that’s not even enough to cover direct state opioid-related health-care spending, pegged just under $200 million a year.
Philly’s District Attorney Larry Krasner wants out of the settlement. That’s a good idea if he thinks he can get more for the city. But litigation is always chancy and costly, and it’s unlikely without a push from the Justice Department that we will ever see defendants admit wrongdoing or face jail time. Compared with the famous 1998 tobacco Master Settlement Agreement that committed more than $200 billion over 25 years, this one has a couple of advantages: the money can’t be siphoned off by hungry officials into general spending, and the distributors agreed to a self-regulation system to spot potentially illegal sales activity.
Whether Philly signs on or not, this settlement does nothing significant to get at the epidemic’s root causes. More than half a million overdose deaths and unmeasurable suffering have resulted from a confluence of several evil streams. The most powerful has been the rise since the 1980s of drastic economic inequality, dislocation, and despair in America. While billionaires who pay next to no taxes build their own space programs, tens of millions of Americans find themselves and their kids locked out of opportunity and the daily pleasures and future hopes that make life worth living. For a whole stratum of Americans doing hard physical work for lower and lower pay, opioids became a treatment for psychic as well physical harm. That’s why Angus Deaton, a Nobel Prize-winning economist, and his coauthor Anne Case called overdoses “deaths of despair.”
But we also have this problem because of regulatory malfeasance. Most people use one or more drugs, and nearly all drugs have some risks. Policymakers defined some drugs as legal and addressed their risks as public health problems. They arbitrarily made others illegal and treated their risks as matters for criminal punishment and control. Fifty years after the enactment of the Controlled Substances Act, criminalizing drug use and trying to control risk through policing has been a clear failure. Criminal justice agencies cannot control illegal drug access on the streets. That’s why efforts to cut access to legal opioids have failed to stop the overdose crisis.
That’s one reason this settlement tries to make distributors do it themselves. Criminalizing drugs has not just failed to control opioids access; it’s made the problem worse. Following a pattern called the iron law of prohibition, efforts to crack down on legal pills and heroin led illegal drug businesses to find more potent formulations, which led to the widespread introduction of fentanyl into illegal drug markets. Fentanyl, much more potent than heroin, has driven the overdose resurgence in the last decade.
The irresponsible behavior of industry, abetted by another regulatory failure, is the third big cause. The makers and distributors of legal opioid pharmaceuticals, like Johnson & Johnson and McKesson — and the Sacklers and their company Purdue — made huge profits as part of an effort to drastically expand the medical use of opioids. These companies knew or should have known from the start that opioid treatment results in substance use disorder in a small but significant proportion of patients, a percentage that would mean millions of new cases.
Nonetheless, they went ahead with the mass marketing of opioids — and the Food and Drug Administration let them.
If we want to stop overdose and risky opioid use, we have to take bigger steps than $24 billion across 18 years. American inequality was built through tax and spending decisions; policymakers can start to rebuild a big middle class with things like the Biden infrastructure proposals investing in American people and places, the child tax credit that gets more money to struggling families, and the OECD plan to establish a global minimum corporate tax. Congress can tackle the criminalization problem by repealing the Controlled Substances Act and “defunding the DEA.” And it can get at predatory pharmaceutical marketing by reforming the FDA with a mandate to regulate pharmaceuticals and other drugs in the public interest, not industry’s.
Band-Aids like this settlement are fine for little cuts, but for the opioid epidemic, this country needs major surgery.
Scott Burris is a professor and the director of the Center for Public Health Law Research at Temple Law School.