Opinions

Opioid lawsuit? Smells like tobacco settlement

Alaska may join other states in suing a manufacturer of painkillers, claiming it contributed to the tidal wave of opioid devastation sweeping the state and nation. But what's the real motivation? Is it governmental altruism or a yearning for the cha-ching of a cash register?

The opioid problem in Alaska certainly is bad enough — at least 95 overdose deaths last year involving opioids, health officials say. Gov. Bill Walker in February declared the epidemic a disaster and ordered statewide distribution of naloxone to treat overdoses.

It is no small potatoes across the nation, either. The American Society of Addictive Medicine says prescription pain reliever overdoses caused 20,101 deaths in 2015, and 12,990 deaths were related to heroin overdoses.

The swelling addiction wave is draining state and local governments' coffers.

Taking a cue from the states' lawsuits against Big Tobacco, and with an eye on recouping law enforcement and health costs incurred battling the opioid epidemic, Alaska has hooked up — on a contingency basis — with one of the nation's largest plaintiffs' litigation firms.

Motley Rice is a South Carolina powerhouse law firm already representing South Carolina and New Hampshire in similar legal actions.

[With synthetic opioids on the rise, state and feds look to protect first responders]

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The target? Purdue Pharma Inc., maker of the powerful, widely prescribed painkiller OxyContin. Purdue was fined $600 million in 2007 for misleading federal regulators, doctors and patients about the drug's addiction risk.

More than 20 U.S. states, counties and cities have sued drug firms in the past year, The Washington Post reports, accusing them of misleading marketing and aggressive distribution of opioids that spurred the problem.

It likely is no coincidence Ron Motley, one of the South Carolina firm's co-founders, led litigation that created 1998's Tobacco Master Settlement Agreement between the attorneys general of 46 states, including Alaska, five U.S. territories, the District of Columbia and America's five largest tobacco companies.

Four states hammered out their own settlements. The tobacco industry agreed to pay settlement parties about $10 billion annually, in perpetuity, and restricted cigarette marketing and sales. In return, they were exempted from legal liability for tobacco-caused harm.

If the state joins in suing Purdue, and possibly others, and wins, Motley Rice and Alaska get a payday. But where will the money actually go?

[Alaska governor declares opioid abuse a public health disaster]

When the tobacco settlement was signed, anti-tobacco forces rejoiced, promising the windfall would be used to recoup tobacco-related health expenditures and prevention programs.

The Campaign for Tobacco-Free Kids keeps records of how much settlement money each state received and what it has spent on such programs. From 1998 to 2017, they received $144.9 billion in TMSA payments, but spent only a small percentage on tobacco programs, the organization says.

During that period, Alaska received $498.3 million. In 2016, the state collected almost $99 million in tobacco revenues — $30.1 million from the settlement — and spent $9.6 million on prevention programs.

As little as that is, the Centers for Disease Control says Alaska and North Dakota are the only states funding tobacco programs even close to the agency's "recommended" spending level.

Much of the TMSA money over the years simply was used for other things.

"Only a small fraction of the money has gone to tobacco prevention," Jim Estes, a professor of finance at California State University, San Bernardino, wrote in a New York Times piece in 2014.

Instead, the states have used the windfall for various and unrelated expenditures. In Alaska, $3.5 million in settlement money was spent on shipping docks. In Niagara County, New York, $700,000 went for a public golf course's sprinkler system, and $24 million for a county jail and an office building.

And in North Carolina, in the ultimate irony, $42 million of the settlement funds actually went to tobacco farmers for modernization and marketing.

"But that's not all: Nine states — Alaska, California, Iowa, Michigan, New Jersey, New York, Ohio, Rhode Island and West Virginia — and Washington, D.C., Puerto Rico and Guam decided to get as much of those annual payments as fast as they could by mortgaging any future payments as collateral and issuing bonds.

They traded their future lifetime income for cash today — at only pennies on the dollar.

The CDC estimates in fiscal year 2017 the states will collect $26.6 billion in tobacco taxes and legal settlements — but will spend less than 2 percent on prevention and cessation programs.

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Whether Alaska, or any state, for that matter, successfully manages to sue companies that have little to say about how their legal products are used, or misused, remains to be seen. But it would be wrong to win a court judgment or wring a settlement from them and then use the windfall for something other than the opioid crisis — as happened in the Big Tobacco settlement.

It would be giving in to a yearning for the cha-ching of a cash register.

Paul Jenkins is editor of the AnchorageDailyPlanet.com, a division of Porcaro Communications.

The views expressed here are the writer's and are not necessarily endorsed by Alaska Dispatch News, which welcomes a broad range of viewpoints. To submit a piece for consideration, email commentary@alaskadispatch.com. Send submissions shorter than 200 words to letters@alaskadispatch.com. 

Paul Jenkins

Paul Jenkins is a former Associated Press reporter, managing editor of the Anchorage Times, an editor of the Voice of the Times and former editor of the Anchorage Daily Planet.

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