The Opioid Reckoning Will Not Be Just

It’s here, and it’s inadequate.

A black wall displays flat white pills with faces carved into them.
Keith Srakocic / AP

A hospital is a menagerie of dangerous products. The magnets in an MRI scanner could hurl an IV pole across the room and impale a person. A defibrillator can restart your heart, but the same electric shock could stop it. The operating room is a repository of scalpels and saws and drills made specifically to penetrate and shred human organs.

Opiate medications likewise serve as powerful tools to relieve suffering, and can very easily cause it. The drugs are analogues of heroin, the potent opiate that has long been almost universally synonymous with danger—with arrests, needles, rock bottom, death. But heroin has killed far fewer people than legal opioid pills in the past two decades. Of the more than 250,000 deaths in the United States from opioid-related overdoses, a minority involved heroin.

The unique danger of opioid pills lies in the way the pills are distributed and sold. They have proved so deadly because they carry a patina of acceptability siphoned from the credibility of the medical profession. The pills come from gleaming marble hospitals and corner-store pharmacies. They’re either prescribed directly to a person by a doctor or sold on the street by people who obtained them from doctors. Decades of marketing amplified their benefits and downplayed their risks.

The role of marketing in the pharmaceutical industry—the apparatus that profits more from maximizing use than optimizing outcomes—is at an inflection point. A reckoning could lead to serious reform. But a settlement deal currently on the table—in which Purdue Pharma, the Connecticut-based producer of Oxycontin, would pay about $11 billion—stands to repeat the mistakes of the past, and to achieve little meaningful progress.

While opioid use has always led to some level of abuse, today’s epidemic of addiction and misuse is new. Beginning in the late 1990s, drug makers inundated the pharmaceutical market with potent and long-acting opiates. Aggressively marketed messages of the pills’ efficacy and safety made their way into medical-school lectures and clinical-practice guidelines.

Medical schools, in turn, taught students that the drugs were important scientific advancements, often good and even necessary to prescribe. When I was in residency, I was told to think of pain as “the fifth vital sign.” My job was to use every tool in the pharmaceutical arsenal to keep pain “well controlled.” The pharmaceutical companies’ marketing push had put the stigma on not using pills, and even when it was technically accurate, it had the effect of focusing doctors’ concern on pain—and drawing that focus away from the future potential for abuse.

This escalation of salesmanship and market competition involved many global pharmaceutical corporations. But unfettered profit-seeking in the sale of potent opioids has been widely traced to the 1996 introduction of Oxycontin by Purdue. In 2007, Purdue pleaded guilty in federal court to a felony charge, having misled doctors and patients about the drug’s potential for abuse and addiction. The company and some executives were ultimately forced to do community service and pay a total of $634 million in fines.

In a subsequent congressional hearing, Senator Arlen Specter asked why these executives didn’t go to jail. The prosecutor John Brownlee had wanted to indict them individually on felony charges, The New York Times later reported. Brownlee possessed records that Purdue had known about Oxycontin’s growing abuse for three years, according to the Times. But after meeting with Purdue’s legal team, the Justice Department reportedly refused to get behind Brownlee’s recommendations. The individual executives were allowed to plead guilty to misdemeanor charges instead, and were not personally implicated in any felony wrongdoing.

Purdue continued aggressive promotion of Oxycontin, and opioid overdoses only increased. In the ensuing five years, enough pills were sent to overdose-mired West Virginia alone that there would be 433 per person.

Then, in June of last year, Massachusetts Attorney General Maura Healey filed a lawsuit against Purdue alleging yet again that the company knowingly misled doctors and consumers about the dangers of its product. (Purdue denied this.) Thousands of other state and federal lawsuits followed.

On Tuesday, NBC reported on a tentative “global settlement” being discussed by David Sackler, a member of the family that owns Purdue. The settlement reportedly involves Purdue paying $10 billion to $12 billion. Several billion would come in the form of medications to help treat opioid addiction and overdoses. The Sackler family—the 19th richest in America—would give up ownership of the company, which would file for bankruptcy and become a “public beneficiary trust.”

Asked for comment in response to the leaked news, Purdue sent me a statement that did not deny or contest the NBC reporting: “While Purdue Pharma is prepared to defend itself vigorously in the opioid litigation, the company has made clear that it sees little good coming from years of wasteful litigation and appeals. The people and communities affected by the opioid crisis need help now. Purdue believes a constructive global resolution is the best path forward, and the company is actively working with the state attorneys general and other plaintiffs to achieve this outcome.”

If all the parties agree and the settlement is completed, Purdue could set a precedent for some two dozen opioid manufacturers and sellers facing lawsuits. From 2006 to 2012 alone, 76 billion pills of oxycodone and hydrocodone were distributed in the United States, and three-quarters came from six companies: McKesson, Walgreens, Cardinal Health, AmerisourceBergen, CVS, and Walmart.

But no new ground would be broken if the justice comes in the form of fines for what amounts to serious crimes. In 2018, President Donald Trump proposed the extreme measure of using the death penalty for certain drug traffickers and dealers. The administration has focused on international trafficking of heroin and fentanyl—the black-market industries that arose to meet demand from people who got started on prescription opioids. Ostensibly setting a standard for the Justice Department he oversees, Trump implied that only his draconian proposal would send a message to other dealers. Short of that, he said, the federal government is “wasting our time.”

Trump did not suggest that these dealers simply pay back a portion of their profits. The importance of sending a message is rarely invoked when it comes to white-collar crime. When drug dealing is done by corporations, the punishment is to impose fines, and to debate what sort of punishment would be fair and productive.

In this case, the proposal on the table would require Purdue to pay a fraction of the $35 billion in revenue it claims to have made from Oxycontin—and far less than even the conservative estimates of the damage it caused.* Even beyond the death toll, millions of people have had injuries and illnesses related to opioid abuse by themselves or others. Millions more have become addicted and had to change their life in order to survive one day at a time. The economic cost alone was estimated in a 2017 White House report to be $504 billion.

As in 2007, this new proposed settlement amounts to yet another fine. It is something that future CEOs can factor in as a line item. It is not a criminal prosecution. It is not a moral reckoning.

For the millions of people affected, in every American community, there may be no true sense of justice. The mandate to stem the ongoing disaster is self-evident. The job of the courts and regulatory apparatus is to help prevent future disaster. This will not happen when penalties are meted out such that loss of life is treated as a cost of doing business. The Justice Department could impose a criminal framework on concealing information that led to thousands of deaths. There could be consequences—short of capital punishment, but beyond surrendering profits—that make it clear to current and future sellers of dangerous products that this can never happen again.

* This article previously misstated that Purdue Pharma claimed $35 billion in profits from Oxycontin.