NPR Story
3:54 pm
Thu May 22, 2014

California Counties Sue 5 Narcotics Makers

Two counties in California — Orange and Santa Clara — are suing five major drug companies, accusing them of causing the growing prescription drug epidemic across the country.

The complaint, filed on behalf of the state of California, accuses the companies, which make painkilling drugs such as Oxy­Con­tin, of deceptive marketing. The lawsuit seeks financial damages.

Here & Now’s Robin Young discusses the lawsuit with Orange County District Attorney Tony Rackauckas and Harvard Law professor Glenn Cohen.

The companies named in the lawsuit include: Actavis, Endo Health Solutions Inc., Johnson & Johnson’s Janssen Pharmaceuticals, Purdue Pharma and Teva Pharmaceutical Industries’ Cephalon Inc.

Interview Highlights: Tony Rackauckas and Glenn Cohen

Rackauckas on prescription painkillers

“They’re FDA approved for specific purposes, like to treat cancer pain and for palliative care at the end of life. They’re certainly not approved for just regular treatment of pain, and they would not have a market for that because of the addictive nature of these drugs. People understand that they shouldn’t — in general, people and doctors understand that they shouldn’t be taking these kind of opium derived drugs just for the ordinary attempt to control pain. And so what’s happened here is, in order to expand the market, these companies have engaged in a campaign of deceptive advertising to convince doctors and these other people that these drugs are not what they really are. They try to convince them that they’re not — or, in fact, have convinced them that they’re not addictive, that they don’t have these qualities of requiring greater and greater use to get therapeutic result. And as a result of that, many, many people have become addicted, and often times, people even go from the drugs, the prescribed drugs, to actual heroin.”

Rackauckas on the rise of opioid addiction in Orange County

“We’re seeing many addictions, to begin with, and that’s an impact on the public health in our county. But in addition to that, we’re seeing overdoses. I mean, we’re having an overdose death by heroin or a heroin derivative-type drug every other day…so it’s really something that’s become epidemic.”

Cohen on how the lawsuit could play out

“This is a very innovative lawsuit, and I think the real question is whether they’re kind of taking a page from the tobacco playbook. That was a fairly successful, if hard fought, kind of war. It got many states involved and it ultimately ended in a settlement. So the real question is whether they’ll have that kind of success, or whether they instead will look more like the public health lawsuits brought among the fast food industry or the gun industry, which really haven’t gone anywhere.”

Guests

Copyright 2014 WBUR-FM. To see more, visit http://www.wbur.org.

Transcript

ROBIN YOUNG, HOST:

It's HERE AND NOW. In California, two counties have filed a major lawsuit on behalf of the state against drug companies they say are causing the country's prescription drug epidemic and creating a population of addicts. The suit contends the drug companies lie about the safety of prescription pain killers to boost sales, and it seeks damages for the financial toll it says prescription drug abuse is taking on California.

Orange County District Attorney Tony Rackauckas is bringing the suit. And District Attorney Rackauckas, Tony, the prescription drugs these companies make are FDA approved. So what exactly are suing them for?

TONY RACKAUCKAS: Well, they're FDA approved for specific purposes, like to treat, you know, cancer pain and for palliative care like at the end of life. They're certainly not approved for just regular treatment of pain. And they would not have a market for that. Because of the addictive nature of these drugs, people understand that they shouldn't, in general, doctors and people understand that they shouldn't be taking these kinds of opium derived drugs just for the ordinary attempt to control pain.

And so what's happened here is that in order to expand the market, these companies have engaged in a campaign of deceptive advertising to convince doctors and other people that these drugs are not what they really, that they try to convince them that they're not--oh, in fact have convinced them that they're not addictive, that they don't have these qualities of requiring greater and greater use to get a therapeutic result.

And as a result of that, many, many people have become addicted. And oftentimes people even go from the prescribed drugs to actual heroin.

YOUNG: Well, and others have noted the seed changed. Twenty years ago it was very difficult to procure these drugs. They were thought to just be for cancer patients, but as you say, as you say in your suit, you feel there's been a campaign to encourage patients to ask for them for things like headaches and reeducate doctors on their addictive nature.

A spokeswoman from one of the companies, Janssen Pharmaceuticals, told the L.A. Times her company is committed to responsible promotion, prescribing, and use of the medications. But what are you seeing as a direct effect? We've done stories about how these pain killers can be crushed and inhaled, but they're very expensive, so people move from that to the less expensive heroin. What impact are you seeing from these addictions in Orange County?

RACKAUCKAS: Well, we're seeing many addictions to begin with, and that's certainly an impact on the public health in our country. But in addition to that, we're seeing overdoses. I mean we're having an overdose death by heroin or a heroin derivative type drug every other day in our county. So it's...

YOUNG: Every other day?

RACKAUCKAS: Every other day. So it's really something that's become epidemic.

YOUNG: Yeah. So the five companies named in the suit: Actavis, Endo Health Solutions Inc., Johnson & Johnson's Janssen Pharmaceuticals, Purdue Pharma, and Teva Pharmaceutical Industries' Cephalon Inc. What do you hope the outcome is?

RACKAUCKAS: Well, to begin with, we're looking for an injunction to stop the false and deceptive advertising, to make sure that they clean up in terms of clarifying the actual affects and nature of these drugs, which they've been covering up. And that's to begin with, so that we can--when people--doctors prescribe, and when people take these drugs, they know what they're getting and they can actually weigh the pros and the cons.

YOUNG: Yeah.

RACKAUCKAS: And that's the biggest and most important thing. And then, of course, there's restitution for the harm that they've caused. And there's certainly civil penalties for all these many hundreds of thousands of prescriptions that they've sent out.

YOUNG: Tony Rackauckas, Orange County District Attorney, thank you.

RACKAUCKAS: Thank you very much.

YOUNG: Well, let's take a look at what the outcome might be. Harvard Law professor Glenn Cohen joins us. Glenn, your thoughts about this lawsuit, two counties on behalf of California against drug companies claiming they use unfair business practices and false advertising to sell drugs and create an epidemic.

GLENN COHEN: So this is a very innovative lawsuit, and I think the real question is whether they're kind of taking a page from the tobacco playbook. That was a fairly successful, if hard fought, kind of war. It got many states involved and it ultimately ended in a settlement. So the real question is whether they'll have that kind of success, or whether this instead will look more like the public health lawsuits brought among the fast food industry or the gun industry, which really haven't gone anywhere.

YOUNG: Well...

COHEN: The complaint - go ahead.

YOUNG: Well, I was going to say, some states have tried to do something like this. Vermont's governor put some restrictions on the pain medication Zohydro. Here in Massachusetts, Governor Deval Patrick tried to ban that drug for the same reasoning that we just heard, that it's a gateway to addiction and heroin abuse.

But that was overturned by a court. He had to settle for significant restrictions on its use. So a ban did get to a court. Ban is not the same as a suit, so your sense of, you know, what's happening across the country?

COHEN: So, I mean, across the country, I mean, a lawsuit like this has many audiences. One is, of course, the governor of California, another is the pharma companies, but so is federal policymakers. This is a way of putting this on the national agenda, and as you say, the Zohydro matter in Massachusetts and other states.

I really do think opioid addiction is becoming dead center in the public health agenda, and we're going to see other states try to make innovative moves. This one's interesting because it's using a consumer protection law, which was one of the ultimately successful things that was used against the tobacco industry.

You know, some of the complaint is a bit of overreaching. I don't think any court will every hold the companies responsible for heroin deaths in the chain of causation, or traffic death, which is another thing in the complaint. But I do think that they will likely press towards ultimately a settlement in this case.

YOUNG: Well, a settlement, but what about restrictions on how - what they - the claims that they can make?

COHEN: So already one of the things that's tricky about this that's quite different from tobacco or fast food is the FDA already regulates what claims can be. So the plaintiffs in this case, the city, the state, have to be careful not to run afoul of federal jurisdiction.

And the way they're doing this is they're talking about promotion beyond what's allowed on the label, off-label promotion. But courts in other parts of the country have recently raised First Amendment concerns about the restriction of off-label promotion among physicians and even among drug reps.

There's a case from the Second Circuit that the federal government chose not to appeal to the Supreme Court that has a very robust sense of this falls within the First Amendment. So that's going to be a challenge in the way they prosecute this case.

YOUNG: Well, it's one we're going to watch closely. Glenn Cohen, a professor at Harvard Law School, as two counties in California on behalf of the state sue several pharmaceutical companies over their pain killers claiming that the companies are leading to the addiction rate, a death every other day, from pain killer related things in Orange County, California.

Glenn Cohen, we are going to keep an eye on this with you. Thank you.

COHEN: Thank you.

YOUNG: You're listening to HERE AND NOW. Transcript provided by NPR, Copyright NPR.

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