By Faith Khalik, Legal Fellow at Public Health Law Watch at Northeastern Univ. School of Law
On May 3, 2019, Public Health Law Watch and six other amici filed an amicus brief in the national prescription opiate litigation in the northern district of Ohio.
During the case’s first hearing in January 2018, Judge Dan Aaron Polster told lawyers that he expected to see a settlement that would reduce the adverse public health impact of the opioid crisis, instead of just “moving money around.” The amicus brief submitted by PHLW et al. proposes just that: a settlement that includes a framework for addressing the opioid crisis and has a meaningful positive impact on public health.
Specifically, the brief proposes the creation of a nonprofit foundation to monitor the settlement’s implementation, participate in development and implementation of evidence-based programmatic initiatives, and administer funding for local treatment and prevention resources.
Amici believe that establishing such a foundation would result in better public health outcomes, as it would ensure that settlement funds go directly toward public health interventions and related initiatives, rather than being redirected toward non-health related priorities the plaintiffs may have. This was an important lesson learned from the 1998 tobacco Master Settlement Agreement (MSA). As discussed in the amicus brief, one of the major failings of the MSA was the fact that it mostly moved money from the defendants to the plaintiffs without any requirement for the funds to address public health issues resulting from tobacco use. Although the plaintiffs in the MSA initially stated their intent was to use the settlement funds for public health purposes, other budgetary needs competed for priority and won; in 2019, states will collect over $27 billion from MSA proceeds and tobacco taxes but allocate only 2.4% of that income to tobacco prevention and related efforts.
Despite this gap in the settlement’s design, the foundation created by the MSA (truth initiative, formerly American Legacy Foundation) is regarded as a public health success. Researchers have concluded that truth’s counter-marketing campaign accounted for a significant decline in youth smoking prevalence.
Based on combined decades of research, subject-matter expertise, and lessons learned from the MSA, amici proffer an outline for a similarly-structured foundation to combat the opioid crisis.
It could be argued that due to differences between tobacco and opioids, a specialized foundation is even more necessary for the opiate litigation than it was for the MSA. Differences include that a) tobacco use is always harmful, while opioid use constitutes an important health care tool; b) the harms from tobacco were caused mainly by defendant’s own products, while there is a large, uncontrolled market for illicit opioids; c) price increases in tobacco directly increased costs to individual users, reducing consumption, while price increases in opioids would likely increase costs to insurance companies, plaintiffs, and the federal government. Because of these differences, a more nuanced approach is necessary in this case.
To remediate the crisis, any approach must factor in four issues. First, it must improve access to evidence-based addiction and overdose treatment, including medication-assisted treatment and overdose reversal drugs. Second, it must improve access to effective pain management. Third, it must address the root causes of substance use and overdose, and refer back to them when constructing and implementing its plan. Finally, it should publicize defendants’ internal documents. The approach should allow for adaptability as further evidence on approach efficacy accumulates.
Poorly calibrated responses that have slashed access to prescription opioids have in some cases exacerbated the problem they were attempting to fix. A nonprofit foundation developed and led by those with public health expertise, specifically opioid use disorder expertise, would be best positioned to navigate these and other issues.
(Amici include The Center for Public Health Law Research at Temple University, ChangeLab Solutions, Health in Justice Action Lab, The Network for Public Health Law, Northeastern University’s Center for Health Policy and Law, and The Public Health Advocacy Institute)
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Faith is the Legal Fellow responsible for overseeing the Public Health Law Watch, a collaborative initiative between the Center for Health Policy and Law and the George Consortium, a network of academics, scholars, and practitioners in the field of public health law.