Will Opioid Manufacturers Become the Next Big Tobacco?
With the federal response to the opioid crisis still under development, state and local governments continue to file lawsuits against the pharmaceutical companies that manufacturer these products, accusing them of misleading doctors and consumers about the risks of addiction. Missouri recently joined this list, filing suit against the leading opioid manufacturers for violating the state’s Medicaid fraud and consumer protection statutes.
In the complaint, Missouri Attorney General Josh Hawley (R) declared that the opioid epidemic is the “direct result of a carefully crafted campaign of deception” carried out by the manufacturers. He added that the pharmaceutical companies fraudulently misrepresented the risks posed by the drugs that they manufacture and sell, misleading both doctors and consumers, while earning billions in profits as a direct result of the harms they imposed on the state.
Missouri joined two other states in filing these lawsuits – Mississippi filed in 2015, and Ohio filed in May 2017. Earlier this month, Wisconsin Attorney General Brad Schimel (R) revealed that the state’s Department of Justice is investigating opioid manufacturers. A bipartisan group of state attorneys general from Illinois, Massachusetts, Pennsylvania, Tennessee, and Texas also announced this month a joint investigation of the marketing practices of opioid manufacturers. Other states reportedly are part of this investigation.
On the local level, the cities of Chicago (IL) and Dayton (OH) have filed suits, as well as a number of counties in California, New York, and Tennessee.
Comparison to Big Tobacco
Similarities are being drawn between these opioid lawsuits and those filed by state and local governments against the tobacco companies in the 1990s. Over 40 states filed suit against the tobacco industry and, rather than defend multiple lawsuits nationwide, tobacco companies facilitated a master settlement that requires a portion of company profits to be allocated to states each year; the agreement also led to the regulation of tobacco products by the Food and Drug Administration.
While the similarities in the litigation approach is evident, a key difference between these cases is that the opioid products are regulated, and have been approved, by the FDA.
What Will Happen Next
Regardless of how the FDA regulatory component will impact the arguments in these cases, state and local governments will continue to file these suits against opioid manufacturers. Once the group of states conclude their joint investigation, more lawsuits are very likely to follow.
It is a reflection of how deep and prevalent the opioid crisis has become in many areas, and the perception that the federal response is languishing. These lawsuits offer an opportunity for state and local government leaders to demonstrate that action is being taken to solve the problem and demand accountability.
The Food, Drug, Medical Device & Agriculture group will continue to monitor key developments on these lawsuits. if you have any questions, please contact James Ravitz, Brian Malkin, Brian Ronholm, or the Arent Fox professional who usually handles your matters.