Tobacco settlement a poor guide to solving opioid crisis

Legal battles over who’s to blame for the opioid epidemic raise serious public policy concerns — questions not suited to a dramatic, high-dollar civil trial like the one that could open soon in Cleveland.

Governments teaming up to sue an industry has two big advantages, as was seen in the 25-year, $246 billion tobacco settlement that began doling out money in 1998.

The money is good: Pennsylvania, one of 46 states in the settlement, has received $6.85 billion in payments.

And the chance to settle a bunch of lawsuits at once tends to bring major players to the table.

That model is again in play with the opioid crisis.

Purdue Pharma and its owners, the Sackler family, have offered $3 billion, control of the company and its future profits to all government plaintiffs agreeing to make that arrangement the end of the Sacklers’ liability.

That’s not good enough for Pennsylvania Attorney General Josh Shapiro and his peers in two dozen other states.

Shapiro rejects the settlement for three reasons: It would rely on maintaining an industry that sells the addictive product that spawned the opioid crisis; it would not deliver enough money to solve the problem; and it would let the Sacklers off too easy, both financially and morally.

“I want to see two things from the Sackler family,” Shapiro said in a National Public Radio interview. “No. 1, an acceptance of responsibility for their role in this epidemic here in Pennsylvania and across the country. And I want to see them dip into their billionaire pockets and take out some of those ill-gotten gains and deliver them back to the people who are most in need.”

The lawsuit in Cleveland joins about 2,000 claims — filed by thousands of governments across the country — that blame Purdue Pharma for starting the epidemic through a deceptive marketing campaign that downplayed the addictiveness of OxyContin; other opioid manufacturers including Actavis, Allergan, Cephalon, Endo, Janssen, Johnson & Johnson for their roles in making the addictive product; pharmaceutical distributors including AmerisouceBergen, McKesson Corp. and Cardinal Health for delivering opioids; and physicians for overprescribing them.

Parts of Shapiro’s argument are strong. Sustaining an industry that oversells pain relief to help those afflicted by its excesses does seem to be a poor strategy. And getting sufficient funds behind the effort to help those addicted to opioids is an important public policy goal.

Just about everything else about the civil suit money chase is wrong.

Relying on civil judgments effectively delays action on a crisis that is claiming 130 lives per day in the United States. One projection sees the opioids death toll rising to close to 82,000 people per year by 2025.

If money is needed to solve this problem, government ought to find it now, not wait for attorneys general to land a pile of cash before taking serious action.

Given the Food and Drug Administration’s failure to step in soon after the addictiveness of opioid painkillers first became apparent — and the Drug Enforcement Administration’s decision to raise production quotas for opioids as the crisis raged — Congress should accept the federal government’s responsibility for this public health plague. It should put up the money to solve it and let the lawyers sort out the industry’s liability later.

Conducting public health policy via civil lawsuits is a mistake, one the timeline on the tobacco settlement illustrates well.

Big Tobacco began its settlement payments in 1998 but it was not until 2007 that the Centers for Disease Control and Prevention recommended that states spend 14% of those payments and tobacco taxes on anti-smoking programs.

So, smoking tobacco was seen as a killer, yet less than one-fifth of tobacco settlement money was to be earmarked for ending the habit. That should not be the model for the opioid crisis, which has killed 400,000 people since 1999.

Seeing the opioid lawsuits as a form of justice, or vengeance, against the industry is a faulty strategy for two key reasons: It will take too long. And it might not steer the money in the right direction.